During the course of the Village Government’s operations, it came to the Board’s attention about two
weeks ago, that three Board members – former Mayor Bergan; Trustees Knight and Tinker – had not
executed an oath of office within 30 days of assuming their official roles as Mayor and Trustees for the
Village, as required by NY Public Officers Law Section 30. This happened during the COVID pandemic. Since Ms. Bergan has submitted her resignation, this situation no longer applies to her.
The legal effect of this failure was to convert their status to that of “de facto” Trustees under applicable
New York law. The practical effect is that the General Counsel of the New York Conference of Mayors
(NYCOM) has recommended that, until the situation is remedied, the Board should desist from acting on significant, non-routine discretionary legislative proposals until the situation has been remedied. The
General Counsel has advised, however, that the Board may continue performing non-discretionary
services for the Village, such as the holding of meetings under NY Open Meetings Law, approving and
executing salary payments and other expenses of the Village, taking decisions that protect public safety,
and generally undertaking all acts that the public expects of them in their roles as de facto Trustees. All
actions taken thus far by the Village Board should be considered legally valid and binding, and in any
case may be ratified once the situation is remedied.
The remedy for the situation is not, as one might expect, for Trustees Knight and Tinker to simply sign
their oaths of office now. Rather, the technical legal remedy is for the NY Legislature to enact a law that
converts their status from de facto Trustees to Trustees de jure (“by law”). Once this is done, the
Trustees will have the same legal status that would have obtained had they executed their oaths of
office within 30 days of their start dates.
This technical error is hardly unique to Middleburgh, but happens in other NY municipalities with some
frequency. The Village Board has started the remedial process already with our state legislators.
Although executing the oaths of office at this point has no legal effect, Trustees Knight and Tinker
nonetheless felt it important to express their support for the federal and New York State constitutions in
connection with their service to the Village, and have signed them.
