Opinion 88-78


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

POLICE AND POLICE PROTECTION -- Contract for (additional protection by county to village); (additional protection by town to village) -- Financing (exemption of village from town tax for town police services) -- Police Chief (necessity for in village) -- Police Department (abolishment of in village); (necessity of if village has justice court); (prior notice requirements for abolishment)

CIVIL SERVICE LAW, §70; VILLAGE LAW, §8-800: In a village having a village justice court, the village board may abolish the village police department by adoption of a local law subject to permissive referendum. State or local civil service agencies should be consulted regarding the rank of village police officers transferred to the town.

VILLAGE LAW, §8-800; CIVIL SERVICE LAW, §58: With certain exceptions, a village police department must have a chief of police.

TOWN LAW, §150: Village property is exempt from real property tax assessments for maintenance and operation of the town police department if the town police department was established after January 1, 1960 and, with certain exceptions, the village has four or more full-time police officers. If the town police department was established prior to January 1, 1960, the town and village may, by agreement, determine the portion of cost for maintenance and operation of the town police department which shall be assessed against property in the village.

You have inquired concerning several pending proposals in connection with the provision of police services in a village and a town.

You ask the following:

(1) May a village which has a village justice court abolish its police department and, if so, what prior notice of such action is required?
(2) If the town hires four full-time police officers currently employed with the village, may the village also retain its police department which would then be made up only of one or two part-time officers?
(3) What would be the status of the officers transferred to the town with respect to their rank?
(4) If the transfer of personnel is not feasible, how may the village receive additional services from the county sheriff?
(5) May the town exempt real property within the village from taxes for town police services?
(6) If the village abolishes its police department, may it be re-established at a future time?
(7) Would it be permissible for the village to contract with the town for additional police services?

Village Law, §8-800 provides that the board of trustees of a village may abolish a village police department by local law, subject to permissive referendum. Within thirty days of abolishing the police department, the village board must notify the New York State Commissioner of the Division of Criminal Justice Services of such action.

Section 8-800 does not contain any prior notice requirements. However, since the abolishment must be implemented by local law, the procedural requirements of article 3 of the Municipal Home Rule Law (§§20, et seq.) must be followed. Pursuant to section 20(4) of the Municipal Home Rule Law, no local law shall be passed unless: (a) it is upon the desks or tables of the members of the governing board at least seven calendar days, exclusive of Sunday, prior to its final passage; (b) it is mailed to each member at least ten calendar days, exclusive of Sunday, prior to its final passage; or (c) the mayor certifies as to the necessity for immediate passage of the local law and it is passed by two-thirds of the total voting power of the board. In addition, because the mayor of a village is not a chief executive officer within the meaning of Municipal Home Rule Law, §2(4), subdivision 5 of section 20 requires that a public hearing be held before the board, on five days' notice or, if authorized by separate local law, on such other notice, but not less than three days, as is prescribed by such law. Once the local law is adopted by the governing board, the permissive referendum requirements of article 9 of the Village Law (§§9-900 et seq.) must then also be complied with (see also Municipal Home Rule Law, §24[1][b]). Village Law, §9-900 requires that, within ten days after adoption of the local law, the village clerk shall post and publish notice setting forth the date of adoption, an abstract of the local law and indicating that it is subject to permissive referendum.

In addition to complying with the above provisions of the Municipal Home Rule Law and Village Law, the village would be required to comply with any notice requirements of the Open Meetings Law throughout the process of considering and implementing the abolishment (Public Officers Law, §§100 et seq.). In this regard, you may wish to contact the Committee on Open Government which is authorized to issue advisory opinions interpreting that law (Public Officers Law, §109). While we are aware of no other statutory requirements for prior notification of the abolishment of the village police department, we suggest any collective bargaining agreement between the village and its police personnel be examined to ascertain whether it contains any pertinent provisions and appropriate civil service agencies be consulted with respect to the requirements of any pertinent civil service rules and regulations.

It should be noted that we are aware of no requirement that a village having a village justice court maintain a police department. In this regard, we note that the Uniform Justice Court Act does not require that village police officers serve as enforcement officers or court attendants. Uniform Justice Court Act, §110 provides that the enforcement officers in civil matters in the case of a village court, in addition to such other persons as are designated by the governing board to be enforcement officers, shall be policemen, marshalls and constables of the village, and the county sheriff. In criminal matters, any peace officer, acting pursuant to his special duties, or police officers to whom the process or mandate of the court is delivered within the county or any adjoining county, shall be the enforcement officer. In addition, pursuant to Uniform Justice Court Act, §109, a village board may appoint court attendants for a village justice court (1977 Opns St Comp No. 77-560, unreported).

With regard to retaining a village police department consisting only of two part-time officers, we note that Village Law, §8-800, as amended by L 1985, ch 810, provides that the village board may establish a police department and "appoint a chief of police and such personnel as may be needed ..." Thus, although section 8-800 does not require that a village have full-time officers in its department, the purpose of the 1985 amendment to section 8-800, which added the phrase "a chief of police", was to require village police departments to have a chief (see Sponsor's Memorandum). In addition, Civil Service Law, §58(1-c), added by L 1985, ch 840, provides that, notwithstanding other general, special or local laws, any political subdivision maintaining a police department serving a population of 150,000 or less and with positions for more than four full-time police officers shall maintain the office of chief. Chapters 810 and 840 also provide, however, that these requirements do not apply to a municipality which, on August 2, 1985, had a police department, so long as the department established as of that date is continued, and had not established the office of chief (L 1985, ch 810, §2; L 1985, ch 840, §2). Since we are not informed whether the village has established the position of chief, we cannot determine whether these "grandfather" clauses are applicable to the village.

It should be noted that it has been held that the 1985 amendments to section 8-800 and section 58 do not violate the home rule provisions of article 9 of the State Constitution. In Petri v Milhim, 139 AD2d 652, 527 NYS2d 291, the court stated that "the advancement of efficiency in local police departments is a matter of urgent concern to the State and ... the Legislature may unquestionably enact a general law disigned to improve the structure of local police departments, without contravening the home rule provisions of the New York State Constitution ..." (139 AD2d at p 653, 527 NYS2d at p 292-3).

As to the ranks of village police officers transferred to the town, we note that section 70 of the Civil Service Law authorizes the State and municipal civil service commissions to adopt rules governing transfers between positions in their respective jurisdictions. In addition, Article 5, Title E of the Civil Service Law (§§83-83-g) provides for the creation of a police advisory board to provide for an orderly transition, including recommendations as to rank, in certain cases of the combining of municipal police agencies. Accordingly, we suggest contacting appropriate State or local civil service agencies with regard to the rank of transferred personnel. We also suggest that both town and village collective bargaining agreements be examined to determine if they contain pertinent provisions in this regard.

Town Law, §150 contains provisions relative to the exemption of villages from the expenses of a town police department. That section provides, with certain exceptions not applicable here, that if a town police department was established after January 1, 1960 and a village wholly or partly within the town maintains a police department of four or more full-time policemen, property within the village is exempt from real property tax assessments for maintenance and operation of the town police department. If a town police department was established prior to January 1, 1960, however, there is no automatic exemption for the village. Rather, the town board may enter into an agreement with any village which is wholly or partly within the town and which maintains a police department of four or more full-time policemen to determine the portion of the cost of maintenance and operation of the town police department which shall be assessed against property in the village. We are aware of no other statute which requires or authorizes a town to exempt villages from town taxes for the maintenance and operation of the town police department. Further, we have expressed the opinion that a town may not, by local law, provide for the cost of any town function, which is required by State law to be charged on a town-wide basis, to be raised only on a part-town basis (1980 Opns St Comp No. 80-334, p 98).

In a previous opinion of this Office, we discussed contracts between a village and a county for additional county sheriff's service under General Municipal Law, article 5-G, §§119-m, et seq. (1980 Opns St Comp No. 80-611, unreported). This opinion concludes, generally, that a village may contract with a county for additional sheriff's services. With regard to a contract between the town and village for town police protection, we have note that in 1986 Opns St Comp No. 86-60, p 94, we stated that a town having a police department must provide general police protection to the entire town, including villages, unless the exemption discussed above in Town Law, §150(1) is applicable. However, we also note that a town and a village located within the town, under article 5-G, may contract for the town to provide additional police protection, over an above what the town already would be required to provide in the village (1976 Opns St Comp No. 76-641, unreported).

Finally, we are aware of no statute which would prevent a village from re-establishing a police department at a future date. Of course, the requirements of Village Law, §8-800, including those with respect to the appointment of a chief and notification to the Division of Criminal Justice Services, would have to be complied with.

March 23, 1988
Suzanne Kelly, Mayor
Village of Blasdell

Jack Quinn, Jr., Supervisor
Town of Hamburg