Can a New York town board expand a three-member police commission to five members, or does Town Law § 150 cap the board at three?

Plain-English summary

The Town of Deerpark wanted to expand its police commission from three commissioners to five. The town attorney asked the AG whether Town Law § 150(2), which authorizes three commissioners (or one commissioner with two town board members serving on the commission, or the town supervisor acting alone as police commissioner), allows that change.

The AG said the statute does not directly authorize five commissioners, but the town can get there through home rule. Towns have a special grant of supersession authority over the Town Law. Under Municipal Home Rule Law § 10(1)(ii)(d)(3), towns may amend or supersede provisions of the Town Law (with limited exceptions not relevant here) when acting within home-rule scope. Combined with the general home-rule grant in NY Const Art IX, § 2(c) and Municipal Home Rule Law § 10(1)(i) and (ii), this gives towns broad room to depart from default Town Law structures.

The AG had previously found that the structure of a town police department, including establishing positions and defining their powers and duties, falls within the property, affairs, or government of the town (Op Atty Gen (Inf) Nos. 85-69, 91-6). Towns also have considerable authority under Municipal Home Rule Law § 10(1)(ii)(a)(1) to establish and structure local positions. The Court of Appeals confirmed extensive home rule authority over local offices and positions in Resnick v County of Ulster.

Because the establishment of a board of police commissioners relates to police department structure and to the establishment of local positions, the town may enact a local law superseding Town Law § 150(2). A five-member board of police commissioners is within the town's home-rule power.

Currency note

This opinion was issued in 1997. 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 does the default Town Law § 150(2) structure look like?

It gives the town board three options: (1) appoint a three-member board of police commissioners; (2) appoint one police commissioner and designate two town board members to serve as commissioners; or (3) by resolution, designate the town supervisor to serve as police commissioner. Whichever path the town picks, the board of commissioners or supervisor-as-commissioner has all the powers the Town Law gives the town board on police matters. The town board can abolish the commission or revoke the designation by resolution at any time.

Why do towns get to supersede the Town Law when other municipalities have a tougher path?

Town Law supersession is a special grant. The Legislature has recognized that the Town Law contains many default structural provisions that towns reasonably want to vary to fit local needs. The supersession authority is in Municipal Home Rule Law § 10(1)(ii)(d)(3). It is one of the more powerful home-rule tools in New York, and it is unique to towns.

Are there any limits on the supersession authority?

Yes. The grant has limited exceptions, and the supersession must fall within the town's home-rule scope (typically property, affairs, or government; or terms and conditions of employment). The town must also follow procedural rules, including specifying the state statute being superseded (Municipal Home Rule Law § 22(1)). A separate body of case law deals with provisions that cannot be superseded (such as those involving statewide concerns or specific carve-outs).

Could the town go larger, say to seven or nine commissioners?

The AG's analysis was about five, but the reasoning is not size-specific. Because the structure of the police department falls within home-rule authority, the town can pick a reasonable number. The opinion does not impose an upper bound; that is a policy choice for the town board.

Does this affect the powers of the commissioners?

Town Law § 150(2) gives the board of police commissioners (or supervisor-as-commissioner) all the powers the Town Law gives the town board on police matters. A local law that supersedes the size requirement does not by itself change the substantive powers. The town can use additional local laws to adjust powers and duties further.

Background and statutory framework

Town Law § 150(1) authorizes the town board to establish and organize a town police department. Section 150(2) sets out the default options for a board of police commissioners: three commissioners; one commissioner with two town board members; or the supervisor as commissioner.

NY Const Art IX, § 2(c)(i) and (ii)(1) grant local governments authority to adopt local laws on property, affairs, or government and on the terms and conditions of employment of officers and employees. Municipal Home Rule Law § 10(1)(i) and (ii) implement that grant for towns. Section 10(1)(ii)(d)(3) gives towns special authority to amend or supersede Town Law provisions when acting within home-rule scope.

Municipal Home Rule Law § 2(5) defines "general law" as a state law that applies in terms and in effect alike to all towns (or all counties, all cities, etc.), so the town supersession path also helps when the Town Law provision is otherwise general.

The Court of Appeals in Resnick v County of Ulster, 44 NY2d 279 (1978), recognized extensive home-rule authority over local offices and positions. Prior AG opinions (Op Atty Gen (Inf) Nos. 85-69, 91-6; Op Atty Gen No. 85-60; 1982 Op Atty Gen (Inf) 80; 1980 Op Atty Gen (Inf) 269) treat the structure of a town police department as squarely within home-rule territory.

Citations

• Town Law § 150 (town police department); § 150(1) (authority to establish department); § 150(2) (default board-of-commissioners structures).
• Municipal Home Rule Law § 2(5) (general-law definition); § 10(1)(i), (ii) (home-rule grants); § 10(1)(ii)(d)(3) (town authority to supersede Town Law).
• Resnick v County of Ulster, 44 NY2d 279 (1978) (home-rule authority over local offices).
• Op Atty Gen (Inf) Nos. 85-69, 91-6; Op Atty Gen No. 85-60; 1982 Op Atty Gen (Inf) 80; 1980 Op Atty Gen (Inf) 269 (police-department structure within home-rule scope).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-18_pw.pdf

Original opinion text

MUNICIPAL HOME RULE LAW §§ 2(5), 10(1)(i) and (ii); TOWN LAW
§ 150.
A town board may amend or supersede section 150(2) of the
Town Law to establish a board of police commissioners consisting
of five members.
April 2, 1997
Glen A. Plotsky, Esq.
Town Attorney
Town of Deerpark
P. O. Box 3139
Port Jervis, NY 12771

Informal Opinion
No. 97-18

Dear Mr. Plotsky:
You have asked whether a town board is authorized to expand
the membership of a police commission created under section 150
of the Town Law from three to five members.
The town board is authorized to establish and organize a
town police department. Town Law § 150(1). Where a police
department has been established, the town board by resolution may
establish a board of police commissioners and appoint one or
three police commissioners. Id., § 150(2). If the town board
appoints only one police commissioner, it must in addition
designate two members of the town board to serve as members of
the police commission. Id. Alternatively, under section 150(2)
the town board, by resolution, may designate the supervisor to
serve as police commissioner. The board of police commissioners,
or the supervisor acting as police commissioner, has all of the
powers given to the town board by the provisions of the Town Law
relating to police matters. Id. The town board, by resolution,
at any time may abolish the police commission or revoke the
designation of the supervisor as police commissioner and
thereafter the town board assumes control of the police
department. Id.
We believe that the town board may enact a local law
amending or superseding section 150(2) of the Town Law to
authorize the establishment of a five-member board of police
commissioners. While normally local laws must be consistent with
general State law (Municipal Home Rule Law §§ 2(5), 10[1][i] and
[ii]), towns have been given the unique authority to amend or
supersede provisions of the Town Law, notwithstanding that they
may be general laws, in order to tailor governmental operations
to meet uniquely local needs. This grant of authority authorizes

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a town board to amend or supersede, with lmited exceptions not
relevant here, provisions of the Town Law when it is acting
within the scope of its home rule authority. Municipal Home Rule
Law § 10(ii)(1)(d)(3). Therefore, provisions of the Town Law
that fall within the broad delegation of home rule powers in
section 10 of the Municipal Home Rule Law may be amended or
superseded by local law.
We have found that the structure of a town police department
is within the property, affairs or government of a town.
Op Atty Gen (Inf) Nos. 85-69, 91-6. In making this
determination, our 1991 opinion stated:
In our view, determination of the
structure of a town police department,
establishment of positions and defining the
powers and duties of these positions are
matters within the "affairs and government"
of the town (id., § 10[1][i]; NY Const,
Art IX, § 2[c][i]). Additionally, under
Municipal Home Rule Law, § 10(1)(ii)(a)(1)
(see, also, NY Const, Art IX, § 2[c][ii][1]),
a town has considerable authority to
establish and structure local positions. We
have recognized the authority of
municipalities to establish and structure
police departments through the adoption of
local laws (Op Atty Gen No. 85-60; 1982
Op Atty Gen [Inf] 80; 1980 Op Atty Gen [Inf]
269). The courts have recognized the
extensive home rule authority of local
governments with respect to local offices and
positions (Resnick v County of Ulster,
44 NY2d 279 [1978]).
In that the establishment of a board of police commissioners
relates to the structure of a town police department and to the
establishment of local positions, such action falls within the
delegation of home rule authority under section 10 of the
Municipal Home Rule Law. Therefore, a town board may utilize its
special delegation of authority under Municipal Home Rule Law
§ 10(1)(ii)(d)(3) to enact a local law superseding section 150(2)
of the Town Law, and may authorize and establish a board of
police commissioners consisting of five members.
We conclude that a town board may amend or supersede
section 150(2) of the Town Law to establish a board of police
commissioners consisting of five members.

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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