Can a NY county shrink its community services board membership from 15 to 9 by local law and attrition, even though the Mental Hygiene Law only specifies 9-member or 15-member boards?

Plain-English summary

Warren County (population under 100,000) wanted to reduce its community services board from 15 members to 9. The County Attorney asked whether the county had authority to do so and what procedure to use.

The AG said the county could, by local law, change the board's size and effectuate the reduction through attrition (letting current members serve out their terms, not filling vacancies as they occur, until the target size is reached).

The Mental Hygiene Law sets up community services boards in every "local governmental unit" that wants State mental-health aid. § 41.05 requires the local unit to establish a board for services to the mentally ill, the developmentally disabled, and those with alcoholism or substance abuse. § 41.11 sets membership rules: counties under 100,000 may choose between 9 or 15 members; all other counties "shall" have 15. Members serve four-year terms (§ 41.11(d)).

The statute is silent on transitions between the two sizes. The county wanted to reduce gradually rather than abruptly. The AG concluded the home-rule framework supports the transition.

The home-rule analysis turns on the "general law" question. Under Municipal Home Rule Law § 2(5), a "general law" is one that "in terms and in effect applies alike to all counties." Mental Hygiene Law § 41.11(d) does not apply alike to all counties; it gives counties under 100,000 a choice and requires 15 members for everyone else. That differential treatment means it is not a general law for home-rule purposes (citing a 1995 informal opinion, 95-25, applying the same reasoning).

Once § 41.11(d) is classified as not a general law, the county can enact a local law that is inconsistent with it, provided the subject is not a "matter of State concern" (citing Perales v Heimbach and Resnick v County of Ulster). The number of board members is not a matter of state concern; the State has already let local governments choose between two sizes, and varying the choice further doesn't impair statewide interests.

Municipal Home Rule Law § 10(1)(i), § 10(1)(ii)(a)(1), and § 10(1)(ii)(a)(12) provide the home rule authority. § 10(1)(i) covers property, affairs, and government. § 10(1)(ii)(a)(1) covers the number of officers and employees. § 10(1)(ii)(a)(12) is the local police-power grant. Any of these can support a local law on the board's size.

The attrition method is consistent with the statute. § 41.11(d) requires vacancies to be filled for unexpired terms, but the county's plan was to let terms expire without replacement until the target size was reached. The opinion did not flag any conflict between attrition and the statutory text.

Currency note

This opinion was issued in 1998. 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

Why isn't Mental Hygiene Law § 41.11(d) a "general law"?

Because it does not apply alike to all counties. A "general law" under Municipal Home Rule Law § 2(5) must apply alike to all counties (or all counties outside a city, or all cities, towns, or villages). Section 41.11(d) treats counties under 100,000 differently from larger counties. That differential treatment removes it from the "general law" category and opens the door to home-rule modification.

Could the county pick any size, or just 9 or 15?

The opinion is broad: "a county may enact a local law authorizing a change in the number of board members to the total set forth in the local law." It does not limit the choice to 9 or 15. Once the home-rule supersession is in play, the county can pick any reasonable number.

Why is the board's size not a matter of state concern?

The opinion's reasoning: the State has already let local governments choose between two sizes for smaller counties, and the size of a county community services board doesn't have a clear statewide impact. The state-concern doctrine targets subjects where the State has reserved its own authority (police bargaining, urban renewal, electric utility regulation on Long Island). Local-government internal structure typically is not in that category.

Could the county also use attrition to transition?

Yes. The opinion specifically endorses attrition as the transition mechanism. Letting terms expire and not refilling vacancies until the target size is reached is consistent with the statute's continuity requirements.

What if the State Office of Mental Health objects to the local law?

The State agency's objection would have to be grounded in some specific statutory provision the county was violating, not just disagreement with the policy choice. If the county's local law followed the structure the opinion describes (home-rule supersession of § 41.11(d) for membership size), the local law would be defensible.

Does this apply to other Mental Hygiene Law boards?

The opinion is specific to community services boards. Other boards under the Mental Hygiene Law (e.g., subcommittees for specific service populations) have their own statutory frameworks. The home-rule supersession analysis would have to be done separately for each.

Background and statutory framework

Mental Hygiene Law § 41.05 requires every "local governmental unit" (typically a county) seeking State aid to establish a community services board. The board oversees county services for mentally ill, mentally retarded and developmentally disabled, alcoholism, and substance abuse populations.

§ 41.11 sets the board structure. Subdivision (a) covers membership. Subdivision (d) covers terms and vacancies.

Municipal Home Rule Law § 2(5) defines "general law" by uniform applicability. § 10(1)(i) covers home-rule authority over property, affairs, and government. § 10(1)(ii)(a)(1) covers powers, duties, and qualifications of officers and employees. § 10(1)(ii)(a)(12) is the police-power grant.

Matter of Perales v Heimbach and Resnick v County of Ulster are the leading state-concern cases. Perales held that a Mental Hygiene Law issue was not a matter of state concern that preempted home rule; Resnick applied the same analysis to other county-level decisions.

The 1995 informal opinion (95-25) is the most directly applicable AG precedent, reading similar Mental Hygiene Law provisions as not "general laws" for home-rule purposes.

Citations

• Mental Hygiene Law § 41.05 (community services board requirement).
• Mental Hygiene Law § 41.11 (board membership and terms).
• Mental Hygiene Law § 41.11(a) (membership: 9 or 15 in counties under 100,000; 15 elsewhere).
• Mental Hygiene Law § 41.11(d) (four-year terms; vacancies filled for unexpired terms).
• Municipal Home Rule Law § 2(5) (definition of "general law").
• Municipal Home Rule Law § 10(1)(i) (home rule on property, affairs, government).
• Municipal Home Rule Law § 10(1)(ii)(a)(1) (officers and employees).
• Municipal Home Rule Law § 10(1)(ii)(a)(12) (police-power subjects).
• Op Atty Gen (Inf) No. 93-45 (county home rule authority).
• Op Atty Gen (Inf) No. 95-25 (Mental Hygiene Law provision not a "general law").
• Matter of Perales v Heimbach, 166 AD2d 707 (2d Dept 1990), app. denied, 77 NY2d 806 (1991) (state-concern doctrine).
• Resnick v County of Ulster, 44 NY2d 279 (1978) (state-concern doctrine applied to county governance).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-19_pw.pdf

Original opinion text

MENTAL HYGIENE LAW § 41.11; MUNICIPAL HOME RULE LAW §§ 2(5),
10(1)(i), (1)(ii)(a)(1) and (1)(ii)(a)(12).
A county may enact a local law to effectuate a transition
from a fifteen-member community services board to a board with
another number of members.

May 19, 1998
Paul B. Dusek, Esq.
County Attorney
County of Warren
Warren County Municipal Center
1340 State Route 9
Lake George, NY 12845-9803

Informal Opinion
No. 98-19

Dear Mr. Dusek:
You have asked whether the county may decrease the number of
members on its community services board from fifteen to nine and,
if it may do so, what procedure may be used to effect the
reduction.
The board was established pursuant to the Mental Hygiene
Law, which provides in part:
(a) To be eligible for state aid
pursuant to this chapter, a local government
shall establish a local governmental unit,
which shall be an identifiable body within
the local government.
(b) Each local governmental unit shall
have a community services board for services
to the mentally ill, the mentally retarded
and developmentally disabled and those
suffering from alcoholism and substance abuse
. . .. Mental Hygiene Law § 41.05.
The statute also states that a local government with a
population of less than 100,000 may, at its option, appoint a
board of either nine or fifteen members. In all other local
governments, the board "shall" have fifteen members. Id.,
§ 41.11(a). Board members are to be appointed for four-year
terms, and no member may serve more than two consecutive terms
unless a local law provides otherwise. Id. § 41.11(d). The
statute also provides that vacancies "shall" be filled for
unexpired terms. Id.

2
The statute on its face permits Warren County, which has a
population of less than 100,000, initially to establish a board
with either nine or fifteen members. However, the statute does
not provide a procedure for increasing membership from nine to
fifteen or decreasing membership from fifteen to nine. Your
county desires to effectuate a decrease through attrition as
vacancies occur or terms expire. You have noted that this
procedure will result in varying memberships until the nine
member board is reached. Your concern is that the State statute
does not provide for membership reductions, nor for boards
comprised of other than nine or fifteen members. You inquire
whether the county can effectuate the gradual reduction by local
law.
We believe that the county may change the number of board
members by local law and effectuate a reduction through attrition
as vacancies occur and terms expire. A county is authorized to
adopt and amend local laws, not inconsistent with the provisions
of the Constitution or any general State law, relating to its
property, affairs or government; the government, protection,
safety, health and well-being of persons or property in the
municipality; and the number, powers, qualifications, etc. of its
officers and employees.
Municipal Home Rule Law § 10(1)(i),
10(1)(ii)(a)(1) and 10(1)(ii)(a)(12). Op Atty Gen (Inf)
No. 93-45.
For home rule purposes, a "general law" is one that "in
terms and in effect applies alike to all counties, all counties
other than those wholly included within a city, all cities, all
towns or all villages." Municipal Home Rule Law § 2(5). In
establishing a different number of board members for community
services boards created by local governments with less than
100,000 population than for boards set up by larger local
governments, section 41.11(d) of the Mental Hygiene Law is not a
general law regarding these membership provisions. It is not a
general law, regarding the number of board members, within the
meaning of the home rule provisions discussed above. See,
Op Atty Gen (Inf) No. 95-25.
A local law relating to the number
of board members, therefore, need not be consistent with Mental
Hygiene Law § 41.11(d).
Thus, the county may utilize its home rule powers to enact a
local law authorizing a change in the number of board members to
the total set forth in the local law and may effectuate the
change as provided therein. A reduction, as contemplated, may be
effectuated by attrition as vacancies occur and terms expire.

3
The number of members of a community services board is not a
matter of State concern. Cf. Matter of Perales v Heimbach,
166 AD2d 707 (2d Dept 1990), app denied, 77 NY2d 806 (1991).
Local laws must be consistent with State laws relating to matters
of State concern. Id. These boards are created by local option
and State law has established varying membership requirements for
boards based on population. It cannot be said that these
characteristics are matters of State concern. See, Resnick v
County of Ulster, 44 NY2d 279 (1978).
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,

SIOBHAN S. CRARY
Assistant Attorney General