Opinion 96 - 20

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Police Department (abolishment in village)

REFERENDUM -- Permissive (need for when abolishing village police department)

VILLAGE BOARD -- Police and Police Protection (abolishment of police department) -- Powers and Duties (abolishment of police department)

VILLAGES -- Police and Police Protection (abolishment of police department)

VILLAGE LAW, §8-800: A village police department established in 1970 by a resolution of the village board adopted pursuant to former Village Law, §188-a may be abolished pursuant to Village Law, §8-800 by local law subject to permissive referendum. Notification of the abolishment of the police department must be given to the Commissioner of the New York State Department of Criminal Justice Services within 30 days of such action.

You ask whether a village police department which was established in 1970 by a resolution of the village board adopted pursuant to former Village Law, §188-a may be abolished by resolution and, if so, whether the resolution would be subject to permissive or mandatory referendum.

Former Village Law, §188-a provided that the board of trustees of certain villages could, by resolution, establish a police department in the village. That section further provided as follows with respect to the abolishment of a police department:

The board of trustees of a village may submit to the qualified voters of the village at a general or special election a proposition to abolish a police department established pursuant to this section and upon the adoption thereof by a majority of the qualified voters of the village voting upon the proposition, the department shall be deemed abolished.

Former section 188-a was repealed when the current Village Law was enacted (L 1972, ch 892, §1).

Section 8-800 of the current Village Law provides that the village board of trustees may, by resolution, establish a police department in the village. It further provides that the board may abolish a police department "established pursuant to this section" by local law, subject to permissive referendum. Upon establishing or abolishing a police department, the village board must notify the commissioner of the New York State Division of Criminal Justice Services of such action within 30 days thereafter.

Since section 8-800 states that the procedure for abolishing a police department applies to departments "established pursuant to this section", and since the village's police department here was established under former Village Law, §188-a and not current section 8-800, it could be argued that section 8-800, if read literally, does not authorize the abolishment of the police department. Current Village Law, §8-800, however, is the successor statute to former section 188-a and covers approximately the same subject matter (see Distribution Table, L 1972, ch 892, Appendix B). Further, Village Law, §23-2204 states that provisions of the current Village Law that are substantially the same in substance and effect as those in force immediately prior to the time the current Village Law took effect and which were repealed by Laws 1972, chapter 892 "are intended to be codifications and continuations of such latter provisions of law and not new enactments".

Although section 8-800 differs from former section 188-a with respect to the type of enactment and referendum requirement applicable to the abolishment of a police department, the two sections are substantially the same, in substance and effect, with respect to establishment of a police department. In our opinion, therefore, section 8-800 must be viewed, in accordance with section 23-2204, as a codification and continuation of former 188-a, not a new enactment, with respect to the establishment of a police department, and that a police department formed under section 188-a is, for purposes of the abolishment provisions of section 8-800, a police department established pursuant to the latter section.

Accordingly, it is our opinion that a police department established in 1970 by a resolution of the village board adopted pursuant to former Village Law, §188-a may be abolished pursuant to current Village Law, §8-800 by local law subject to permissive referendum. Notification of the abolishment of the police department must be given to the Commissioner of the New York State Department of Criminal Justice Services within 30 days of such action.

October 10, 1996
James C. Tomasi, Esq.,Village Attorney
Village of Salem