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What happens if a New York Assembly member refuses or modifies the required oath?
Executive summary
If a New York Assembly member refuses to take the constitutionally prescribed oath or materially alters it, state law and Assembly practice create consequences ranging from being unable to perform duties to the office being treated as vacant; the constitutional oath is mandatory for members to "enter on the duties" of office and must be filed as required [1] [2]. Reporting and statutory sources show routine remedies — administrative filing requirements, local vacancy rules and the Assembly’s ceremonial administration — but available sources do not provide a single, neat checklist of every sanction for a member who modifies wording or substitutes an alternative oath [3] [2].
1. The constitutional baseline: oath required before performing duties
Article XIII of the New York Constitution requires that "Members of the legislature... shall, before they enter on the duties of their respective offices, take and subscribe" the prescribed oath promising to support the U.S. and New York Constitutions and to faithfully discharge their duties [1]. The Department of State reiterates that members of the State Legislature must take and file that constitutional oath before commencing duties and that completed forms are filed with specific state offices [2]. Taken together, these provisions establish that the oath is a precondition to exercising legislative power and must be recorded [1] [2].
2. Practical consequence: inability to act until oath is taken and filed
Because the Constitution and Public Officers Law require taking and filing the oath before entering on duties, a member who refuses to take it cannot lawfully perform the role’s functions until compliance occurs; the Department of State instructions emphasize filing requirements and locations for ledgering oaths [2]. The Assembly’s own rules envision a ceremonial administration of the oath en banc by the Acting Clerk, showing institutional practice for swearing members and signaling that the chamber controls when members are formally recognized [3]. The practical effect is immediate: without the oath on file, the member lacks the constitutional and administrative authorization to act in office [1] [3].
3. Vacancy and "refusal to serve" doctrines used in other New York contexts
State statutes and guidance about other public officers show a recurring line: failure to take or file the oath within the time prescribed may be treated as a refusal to serve and the office may be filled as a vacancy in comparable local contexts (town law and trustee guidance) [4] [5]. For example, town statutes deem neglect to take and file the oath a refusal to serve subject to vacancy-filling procedures, and library/trustee materials warn that failure to file the oath "may cause the trustee’s position to be deemed vacant" [4] [5]. While these materials pertain to local or trustee offices rather than Assembly seats, they illuminate a legal logic the Legislature or courts could apply to a member who declines the oath [4] [5].
4. Variations, exceptions and administrative remedies in state law
New York law contains limited exceptions and alternative procedures for certain employees: Civil Service Law Section 62 allows some state employees (and recognized Native American individuals) to file an alternative sworn statement in lieu of the constitutional oath, and other statutes permit delayed filing under specific circumstances such as active military service [6] [7]. However, the Department of State and constitutional text treat legislators specially — members of the legislature are singled out by Article XIII — and available sources do not describe a general carve‑out allowing Assembly members to substitute an alternative statement in place of the Article XIII oath [1] [6]. Available sources do not mention any routine administrative substitute for a legislator who alters the oath wording [2].
5. What happens if a member materially modifies the oath wording?
The sources establish the required text and filing mechanics but do not set out a single statutory penalty for altering wording; instead, they imply institutional and legal remedies: refusal or failure to take the required oath prevents entering on duties and could invite a court or legislative determination that the seat is vacant or that the member is not entitled to serve [1] [2] [5]. Assembly Rules show that the chamber administers the ceremonial oath, giving the Assembly internal control over recognition of members, which means the House itself could refuse to seat or recognize a member who departs from the constitutional formulation [3]. Available reporting and statutes do not describe an automatic criminal penalty for modifying the oath text by a legislator — rather, the immediate effect is administrative and procedural: loss of capacity to act and possible vacancy remedies [1] [3].
6. Gaps, possible litigation and political remedies
Because sources do not comprehensively map every route — criminal statutes, contempt, or judicial nullification of an altered oath — the most likely path for resolution is political or judicial: the Assembly could vote to refuse recognition or the issue could be litigated in court to declare whether a modified oath satisfies Article XIII [3] [1]. Legislative history and proposed bills show ongoing statutory fine-tuning around oaths and office forfeiture in related contexts, indicating that remedies vary and sometimes require case‑by‑case litigation or legislative action [7] [8]. In short, the immediate, documented outcomes are procedural — no duty to recognize, inability to perform duties, and potential vacancy — while stronger remedies would likely require either chamber action or court rulings [1] [3].
Limitations: reporting and statutory excerpts available here establish the constitutional oath, filing requirements, and analogues in local law, but available sources do not provide an exhaustive catalogue of judicial decisions specifically resolving modified‑oath disputes for New York Assembly members; nor do they describe a definitive criminal sanction for changing oath wording [1] [2].