In a non-charter New York county, can the community services board put the director of mental hygiene on a fixed term instead of leaving the position open-ended?

Plain-English summary

Lewis County had a community services board, which is the entity in non-charter counties that handles services for the mentally ill, developmentally disabled, and people with substance use issues. The director of mental hygiene serves as the chief executive officer of the local governmental unit. Lewis County asked the AG whether the community services board could set a fixed term of office for the director, instead of leaving the position open-ended.

The AG said yes. Mental Hygiene Law § 41.09(a) provides that in non-charter governments, "the board shall appoint and remove the director." The statute does not specify how the appointment or removal is to happen. The AG read that silence as a grant of discretion. The board can decide to attach a fixed term to the appointment and set up its own procedure for removal at the end of (or during) that term.

The opinion adds two points. First, imposing a fixed term on a director who has been serving open-ended for years requires a new appointment, because the position changes character. The current director can be a candidate. Second, the board itself, not the county legislature, has the authority to set the term and the procedure. No local law or county legislator resolution is required, because the appointment-and-removal authority resides in the board under § 41.09(a).

Currency note

This opinion was issued in 1996. 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

What is a community services board?
At the time of the opinion, Mental Hygiene Law § 41.05 required each county (and New York City) to establish a local governmental unit for the provision of services to the mentally ill, mentally retarded, developmentally disabled, and persons suffering from alcoholism, alcohol abuse, substance abuse, or substance dependence. Each unit had a community services board with responsibility for those services and a director as chief executive officer.

What is the difference between charter and non-charter counties for this question?
Mental Hygiene Law § 41.09(a) at the time provided that "charter governments may provide for appointment and removal of directors in a manner authorized by such governments. In all other local governments, the board shall appoint and remove the director." In a charter county, the charter sets the appointment and removal mechanism. In a non-charter county like Lewis, the community services board itself handles appointment and removal.

Why does the AG read silence about "how" as a grant of discretion?
Because the statute names the board as the body that "shall appoint and remove" but does not prescribe a procedure. When a statute gives a body a function without telling it how to carry it out, the body has implicit authority to choose a reasonable procedure. The AG concluded that fixing a term of office, and adopting a removal procedure for that term, is within that implicit authority.

Does the director have to be re-appointed if a term is added?
The AG said yes: imposing a fixed term where one did not exist before changes the conditions of the office, so a new appointment is required. The sitting director can be considered for the appointment but is not automatically continued.

Does the county legislature have to do anything?
The AG said no, not in a non-charter county. Mental Hygiene Law § 41.09(a) places the appointment-and-removal power in the community services board, not in the county legislature, so the board can act on its own authority. The county legislators do not need to pass a resolution or local law.

Can the board also adopt a removal procedure for cause during the term?
The AG said yes, and read § 41.09(a) as requiring it: because the statute says the board "shall appoint and remove," the AG concluded that the board has to have a removal procedure in place, not just an appointment procedure.

Background and statutory framework

The relevant statute was Article 41 of the Mental Hygiene Law:

Section 41.03 defined the "local governmental unit" as the identifiable entity within local government responsible for mental health services. To qualify for state aid, a county (or New York City) had to establish a local governmental unit. Services could be provided directly by the unit, through contracts with voluntary agencies, or through state facilities.

Section 41.05 established the community services board as the body responsible for services. The board appointed a director who served as chief executive officer of the local governmental unit. In charter governments, the charter could vest policy-making functions in the director; in non-charter governments, policy-making functions vested in the board.

Section 41.09(a) addressed appointment and removal: charter governments could provide for appointment and removal in a manner authorized by the charter; in non-charter governments, the board appointed and removed.

The AG's analytical move was to treat the statute's silence on procedure as deliberate. Lawmakers who wanted to lock in a fixed mechanism would have said so. Because they did not, the board has the flexibility to choose, which includes the option to set a fixed term and a removal procedure.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-13_pw.pdf

Original opinion text

MENTAL HYGIENE LAW §§ 41.03, 41.05, 41.09.

The Lewis County Community Services Board may provide a fixed term of office for the director of mental hygiene.

March 25, 1996

Kevin M. McArdle, Esq.
County Attorney
County of Lewis
P. O. Box 128
Lowville, NY 13367-0128

Informal Opinion No. 96-13

Dear Mr. McArdle:

You have asked whether the Lewis County Community Services Board may appoint the local mental hygiene director to a term of office and have inquired as to the procedure for such an appointment, if authorized.

For background purposes, in order to be eligible for State aid, a county or New York City must establish a local governmental unit, which is defined as an identifiable entity within the local government with responsibility for the provision of services for the mentally ill, the mentally retarded, developmentally disabled persons and those suffering from alcoholism, alcohol abuse, substance abuse or substance dependence. Mental Hygiene Law §§ 41.03(1), (3) and (4), 41.05(a). The services themselves may be provided by a local governmental unit, by a voluntary agency under a contract with a local governmental unit or may be provided through State facilities. Id., § 41.03(3), (4). Each local governmental unit has a community services board with responsibility for the above services and a director as its chief executive officer. Id., § 41.05(b), (c). Local governments with charters may vest policy making functions in the director but in the case of non-charter governments, the policy making functions vest in the board. Id., § 41.05(c).

Your concern is section 41.09(a) of the Mental Hygiene Law, which provides as follows:

(a) Charter governments may provide for appointment and removal of directors in a manner authorized by such governments. In all other local governments, the board shall appoint and remove the director.

Lewis County is a non-charter government and, therefore, would fall within the second sentence quoted above. In our view, this provision gives the board responsibility for appointment and removal of the director of mental hygiene but does not establish any particular mechanism or procedure for the appointment or removal. Thus, a community services board can, in our view, utilize this grant of authority to establish a term of office for the director and a procedure for removal of this officer.

In answer to your first question, State law provides that in non-charter counties the community services board is responsible for appointment and removal of the director of mental hygiene and provides the board with flexibility to determine the procedure which may include appointment of a director for a fixed term with a mechanism for removal. In that the statute requires the board to "appoint and remove" the director, in our view a procedure for removal must be established.

You have indicated that the current director has held the position for approximately 20 years and ask whether the board may impose a term of office upon an individual who is already serving as the director. In our view, the establishment of a term of office for the position would necessarily include a new appointment of an individual to occupy the office for that term subject to the revised conditions. There is no reason, however, if the current occupant of the position meets the requirements of law and of the State why he or she cannot be a candidate for appointment.

Finally, if the imposition of a specific term of office is permissible, you ask whether a resolution or local law of the Lewis County Board of Legislators is necessary to establish the term or whether action by the community services board is all that is required. Under the express conditions of the statute, the community services board is to appoint and remove the director. Implicit in this grant of authority is the responsibility of the board to determine the procedure for appointment and removal.

We conclude that the Lewis County Community Services Board may provide a fixed term of office for the director of mental hygiene.

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