Opinion
Dated: July 27, 1979
NY CONST, ARTICLE XIII, § 2, MCKINNEY'S UNCONSOLIDATED LAWS, §§ 8113, 8114
A public benefit corporation may not enter into personal service contracts with its appointed President and Vice-President at a certain salary for a fixed term of years.
Syd Askoff President, OTB Suffolk Regional
This is in reply to your letter of July 17, 1979, in which you seek this office's opinion regarding a public benefit corporation entering into a personal service contract with its appointed President and Vice-President at a certain salary for a fixed term of years.
The Suffolk Regional Off-Track Betting Corporation was established pursuant to McKinney's Unconsolidated Laws, § 8113. By law, each Regional Off-Track Betting Corporation is a body corporate and politic constituting a public benefit corporation.
Pursuant to McKinney's Unconsolidated Laws, § 8114, each Regional Off-Track Betting Corporation has the power, among other things, to appoint officers, agents and employees, to describe their qualifications, and to fix their compensation. The statute is silent, however, as to the duration of such officers' tenure in office.
New York State Constitution, Article XIII, § 2 provides:
"When the duration of any office is not provided by this constitution it may be declared by law, and if not so declared, such office shall be held during the pleasure of the authority making the appointment."
Under the authority of the above provision, it has been held that in the absence of restraints imposed by the New York State Constitution or by statute, the power to appoint to public office implies the power to remove when no definite term is attached to the office by law ( Beers v Nyquist, 72 Misc.2d 210). Since the Legislature has enacted no restraining provision of law indicating otherwise, the Constitution is controlling. Thus, the President and Vice-President of a Regional Off-Track Betting Corporation, who are appointed by the Board of Directors of the Corporation, serve at the pleasure of the Board, but no longer. Therefore, a contract for a fixed term may not validly be made (see Edsall v Wheler, 29 A.D.2d 622 [4th Dept, 1967]).
In view of the foregoing, it is the opinion of this office that a public benefit corporation may not enter into a personal service contract with its appointed President and Vice-President at a certain salary for a fixed term of years.