Can a New York village move authority over police discipline from the village board to the village manager?

Plain-English summary

The Village of Port Chester asked whether disciplinary proceedings against members of the village police could be both heard and decided by the village manager. Under Village Law § 8-804, the board of trustees (or a board of police commissioners under § 3-308) sets the rules for disciplinary charges and makes the ultimate decision on discipline. The statute allowed the rules to send the hearing to another officer, like the village manager, but the final determination still belonged to the trustees.

The AG's office said the trustees could change that result by local law, but only with a mandatory referendum. Municipal Home Rule Law § 10(1)(ii)(e)(3) lets a village board enact a local law amending or superseding the Village Law on matters falling within its home-rule powers. Determining the duties and powers of village officers, including the village manager, is within that authority (§ 10(1)(ii)(a)). Because the local law would shift a power of an elective officer (the board of trustees) to an appointed one (the village manager), § 23(2)(f) required the voters to approve the transfer at a mandatory referendum.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could the village manager hear the disciplinary case without changing the law?
A: Yes, as long as the trustees retained authority over the ultimate decision. Village Law § 8-804 let the regulations send the hearing to another village officer, but the trustees (or a police commission under § 3-308) had to make the discipline decision unless the law was changed.

Q: Why was a referendum required?
A: Municipal Home Rule Law § 23(2)(f) calls for a mandatory referendum whenever a local law transfers a power of an elective officer. Trustees are elected, so reassigning their disciplinary authority to an appointed village manager triggered that voter-approval requirement.

Q: What gave the village authority to supersede Village Law § 8-804 in the first place?
A: Municipal Home Rule Law § 10(1)(ii)(e)(3) authorizes a village board to enact a local law amending or superseding a Village Law provision on a matter within the village's home-rule powers. Setting the powers and duties of village officers is one of those powers (§ 10(1)(ii)(a)).

Q: Did this opinion cover discipline of police officers under Civil Service Law § 75?
A: The opinion noted Civil Service Law § 75(2) as background on disciplinary procedures generally. It did not displace § 75's procedural due process protections, which apply regardless of who in the village hears or decides the case.

Background and statutory framework

A village police department in New York is subject to a layered set of rules. Village Law § 8-804 lets the village board, or a board of police commissioners under § 3-308, adopt regulations governing the determination of charges against members of the department. The hearing officer can be someone else, but the final disciplinary decision must come from the board with jurisdiction. Civil Service Law § 75 supplies the procedural due process requirements that apply across most public employee discipline cases.

The Municipal Home Rule Law gives villages substantial flexibility. Under § 10(1)(ii)(a), a village may enact local laws relating to the powers, duties, qualifications, mode of selection, and removal of its officers and employees. Under § 10(1)(ii)(e)(3), a village may enact a local law amending or superseding a Village Law provision falling within those home-rule powers. Together, those provisions allowed Port Chester's trustees to enact a local law transferring the final disciplinary authority to the village manager. The catch was § 23(2)(f): because the change moved authority away from an elective office, the voters had to approve it at a mandatory referendum.

Citations and references

Statutes:

• N.Y. Civil Service Law § 75 (disciplinary procedures)
• N.Y. Municipal Home Rule Law § 10 (general grant of home-rule powers)
• N.Y. Municipal Home Rule Law § 23 (mandatory referendum requirements)
• N.Y. Village Law § 3-308 (board of police commissioners)
• N.Y. Village Law § 8-804 (police disciplinary regulations)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-55_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Page 1 of 2

Opn. No. 95-55
CIVIL SERVICE LAW § 85(2); MUNICIPAL HOME RULE LAW §§ 10(1)(ii)(a) and (e)(3), 23(2)(f);
VILLAGE LAW §§ 3-308, 8-804.
Subject to mandatory referendum, the village board of trustees may enact a local law transferring the
authority to discipline police officers from the board of trustees to the village manager.
December 5, 1995
Anthony M. Cerreto, Esq. Informal Opinion
Village Attorney No. 95-55
Village of Port Chester
10 Pearl Street
Port Chester, NY 10573
Dear Mr. Cerreto:
You have asked whether disciplinary proceedings against members of the village police department may
be conducted by the village manager. In a telephone conversation, you explained that the manager
would conduct the hearing and also make the ultimate decision as to discipline.
Currently, the village board of trustees conducts the hearing and determines the appropriate discipline.
Under section 8-804 of the Village Law, the village board of trustees or municipal board (apparently a
reference to Village Law § 3-308, which authorizes establishment of a board of police commissioners) is
authorized to adopt rules and regulations for the determination of charges against members of the village
police department. These regulations are subject to due process requirements and the ultimate decision
on discipline is to be made by the board of trustees or other municipal board having jurisdiction. Under
section 8-804, there is nothing to prevent the regulations from providing for another village officer, such
as the village manager, to hear the charges but the ultimate decision must be made by the board of
trustees or other board having jurisdiction. See also, Civil Service Law § 75(2).
In your village, the board of trustees has responsibility for conducting the hearing and for making the
ultimate determination of discipline. While the village manager under section 8-804 of the Village Law,
through an amendment of the regulations can be given authority to conduct the hearing, the transfer to
the manager of responsibility for making the ultimate determination of discipline would be inconsistent
with that statute. The question is whether your village may enact a local law authorizing the village
manager to make the ultimate determination of discipline.
In our view, there is authority for the enactment of a local law to accomplish this result. Under
Municipal Home Rule Law § 10(1)(ii)(e)(3), a village board of trustees is authorized to enact a local law
amending or superseding a provision of the Village Law dealing with matters falling within the scope of
its home rule powers. A village board of trustees possesses home rule power to determine the powers,
duties, qualifications, etc., of its officers and employees. Id., § 10(1)(ii)(a). Thus, in our view, the board
of trustees may enact a local law amending section 8-804 of the Village Law to give the village manager
authority to determine the discipline of police officers in accordance with the findings of fact made at
the hearing. Since such a local law would transfer a power of an elective officer, in this case the board of
trustees, it is subject to mandatory referendum. Id., § 23(2)(f).
We conclude that the village board of trustees may enact a local law, subject to mandatory referendum,

http://www.oag.state.ny.us/lawyers/opinions/1995/informal/95_55.html

4/21/2006

OPINIONS OF THE ATTORNEY GENERAL

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transferring the authority to discipline police officers from the board of trustees to the village manager.
The Attorney General renders formal opinions only to officers and departments of State government.
This perforce is an informal and unofficial expression of the views of this office.
Very truly yours,
JAMES D. COLE
Assistant Attorney General
in Charge of Opinions

http://www.oag.state.ny.us/lawyers/opinions/1995/informal/95_55.html

4/21/2006