Do New York's restrictions on police campaign activity apply to sheriffs and deputy sheriffs?

Plain-English summary

Chautauqua County's county attorney asked whether the Election Law restrictions on police campaign activity (§ 17-110) apply to sheriffs and deputies. A 1940 AG opinion had said no, on the theory that a sheriff was a "peace officer" but not a member of a "police force" within the meaning of the Penal Law predecessor to § 17-110. The State Board of Elections and later AG opinions had followed the 1940 holding.

The AG reversed course. The reason was a change in the statutory definitions. When the 1940 opinion was written, the Code of Criminal Procedure classified sheriffs and deputies as one category of peace officer, separate from municipal "police constables or policemen." Today, Criminal Procedure Law § 1.20(34)(b) defines "police officer" to include "sheriffs, under-sheriffs and deputy sheriffs of counties outside of New York City." Sheriff personnel now share the same full police-officer powers (warrantless arrest authority, search warrants, weapons authority) as any municipal police officer.

That collapse of the older peace officer/police officer distinction matters because § 17-110 covers "any officer or member of any police force." If sheriffs and deputies are police officers performing general law enforcement, calling them members of a police force is the natural reading. Many counties rely on the sheriff's road patrol for general law enforcement in towns without their own departments, which makes the sheriff functionally a police department. The AG cited Purdy v Kriesberg, 47 NY2d 354 (1979) (Court of Appeals) for the underlying policy: removing police personnel from active politics protects the integrity of law enforcement.

The AG noted a parallel restriction in Alcoholic Beverage Control Law § 128 (no police having a financial interest in a liquor business), which courts had already applied to deputy sheriffs (Wilson v NYS Liquor Authority, 52 NY2d 741 (1980)). The same functional reasoning supports applying § 17-110.

The opinion also flagged a distinction. Myles v Phillips, 87 AD2d 614 (2d Dept), affd 57 NY2d 692 (1982), held that for residency-exception purposes under Public Officers Law § 3, deputies are not members of a police force. The AG explained that the residency case turns on a narrow exception-from-residency rule, not on the broader functional question, and so does not control here.

What the restriction does and does not do. § 17-110 makes it a misdemeanor for an officer or member of a police force to use official powers to reward or punish a political organization, candidate, or voter, or to personally solicit, collect, or receive campaign money. It does not bar a sheriff or deputy from running for office. A police-officer candidate may have a committee that raises money on the candidate's behalf, but the candidate cannot personally solicit or collect funds.

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

What does Election Law § 17-110 actually prohibit?

Two main categories. First, a police commissioner or any officer or member of a police force may not use official powers or position to reward or punish any political party, candidate, citizen, or fellow officer because of political views or affiliation. Second, no such officer may personally solicit, collect, or receive money for any political fund, club, association, society, or committee. Violation is a misdemeanor.

Can a sheriff or deputy run for elective office at all?

Yes, but with restrictions. The AG, citing Jones v Seneca Bd. of Elections, 83 AD2d 982 (4th Dept 1981), explained that candidacy itself does not violate § 17-110. The candidate cannot personally solicit, collect, or directly receive campaign funds. A committee can raise money on the candidate's behalf.

How does this opinion change the 1940 AG opinion?

The 1940 opinion (1940 St Dept Rep 122) said sheriffs were peace officers but not members of a police force, so § 17-110's predecessor did not apply. That conclusion rested on the older Code of Criminal Procedure scheme where sheriffs and municipal policemen were separate categories. Once the Criminal Procedure Law re-classified sheriffs as police officers, the underlying premise of the 1940 opinion fell away. The 1998 opinion announces that change directly.

Why didn't the Public Officers Law residency cases settle the issue the other way?

In Myles v Phillips and Mazzo v County of Monroe, the courts said deputy sheriffs were not "members of a police force" for purposes of an exception to Public Officers Law § 3's residency requirement. The AG distinguished those cases on the ground that they interpreted a narrow residency exception, which courts construe strictly against expanding it. § 17-110's broader functional purpose (removing police from political activity) calls for a different reading.

Is there a separate fundraising rule for elective judges that I should know about?

Yes. Elective judges face campaign restrictions too, but 22 NYCRR § 100.5 specifically authorizes them to form committees that raise money for their elections. The AG flagged this as the model for how a sheriff's candidacy can coexist with § 17-110's solicitation ban: the committee raises money, the candidate does not personally solicit.

Background and statutory framework

The 1998 opinion sits at the intersection of three statutory schemes that all changed over time.

Code of Criminal Procedure and Criminal Procedure Law. In 1940, "peace officer" was the umbrella category and included sheriffs, deputies, marshals, constables, and municipal policemen. The current Criminal Procedure Law splits the world into "police officers" (§ 1.20(34)) and "peace officers" (§ 2.10). Police officers have primary, general law-enforcement authority (warrantless arrests, search warrants), are typically exempt from the Penal Law firearm prohibition (§ 265.20(a)(1)(b)), and have uniform statewide training requirements. Peace officers are now a more specialized list with employer-regulated powers focused on a particular locale or activity. Sheriffs and deputies sit in the police-officer category.

Election Law § 17-110. A successor to Penal Law (1938) § 756, this provision criminalizes use of police authority for political purposes and direct fundraising by police personnel. The State Board of Elections has interpreted the substantive scope of the restrictions in a line of formal opinions (1983 Formal Opinions Nos. 5, 8, 9).

Public Officers Law § 3. Section 3 requires that public officers be residents of the political subdivision they serve. Subdivision 2 carves out an exception for members of a police force. Myles and Mazzo held that the residency exception is to be read narrowly and does not cover deputy sheriffs. The 1998 opinion distinguishes those cases as turning on a specific, narrowly construed residency carve-out.

The AG also drew on the parallel functional analysis in Alcoholic Beverage Control Law § 128 cases (Wilson, Rosica) where courts had applied the police-financial-interest bar to deputy sheriffs, on the same reasoning that a deputy is a police official for purposes of laws restricting outside conduct.

Citations

• Election Law § 17-110 (campaign activity by police officers).
• Criminal Procedure Law § 1.20(34)(b) (sheriffs and deputies are "police officers" outside NYC).
• Criminal Procedure Law § 2.10 (consolidated peace-officer list).
• Alcoholic Beverage Control Law § 128 (police financial interest in alcoholic beverage businesses).
• Public Officers Law § 3 (residency requirement and police-force exception).
• Purdy v Kriesberg, 47 NY2d 354 (1979) (policy basis for removing police personnel from politics).
• Jones v Seneca Bd. of Elections, 83 AD2d 982 (4th Dept 1981) (police-officer candidacy does not itself violate § 17-110).
• Wilson v NYS Liquor Authority, 52 NY2d 741 (1980); Rosica v State Liquor Authority, 69 AD2d 1015 (4th Dept 1979) (ABC Law § 128 applies to deputy sheriffs).
• Myles v Phillips, 87 AD2d 614 (2d Dept), affd 57 NY2d 692 (1982); Mazzo v County of Monroe, 58 AD2d 1017 (4th Dept 1977) (deputies not members of a police force for residency-exception purposes).
• Matter of Gretzinger v Board of Elections of Monroe County, 34 AD2d 1095 (4th Dept 1970) (older case applying 1940 AG analysis).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-57_pw.pdf

Original opinion text

ALCOHOLIC BEVERAGE CONTROL LAW § 128; CRIMINAL PROCEDURE LAW
§§ 1.20(34)(b), 2.10, 2.20, 120.10, 140.10, 140.25, 690.25;
CRIMINAL PROCEDURE LAW (1940) § 154; ELECTION LAW § 17-110; PENAL
LAW (1938) § 756; PENAL LAW § 265.20(a)(1)(b); PUBLIC OFFICERS
LAW § 3; 22 NYCRR § 100.5.
As police officers who commonly provide general law
enforcement, sheriffs and deputy sheriffs are subject to
section 17-110 of the Election Law.

December 29, 1998

Stephen M. Abella, Esq.
County Attorney
County of Chautauqua
Gerace Office Bldg.
3 North Erie Street
Mayville, NY 14757-1007

Informal Opinion
No. 98-57

Dear Mr. Abella:
You have inquired whether restrictions on political activity
under section 17-110 of the Election Law apply to sheriffs and
deputy sheriffs.
Generally, subdivisions 1 and 2 of section 17-110 provide
that it is a misdemeanor for "a police commissioner or any
officer or member of any police force" to use official powers to
aid, reward or punish a political organization, citizen or
officer or member of a police force because of political views or
affiliation.
Subdivision 3 of section 17-110 provides:
Any person who, being a police
commissioner or any officer or member of any
police force in this state:
. . .

3. Solicits, collects or receives any
   money for, any political fund, club,
   association, society or committee, is guilty
   of a misdemeanor.
   The seminal 1940 Attorney General opinion, 1940 St Dept Rep
   122, which was relied upon in subsequent opinions and cases,
   concludes that the sheriff is not subject to the campaign
   restrictions. We conclude here, however, in view of amendments
   to State law regarding the definitions of police officer and
   peace officer and the current role of the sheriff and his
   deputies as a police force, that section 17-110 does apply to
   sheriffs and deputy sheriffs. We note it has been decided that
   the candidacy of a police officer for an elective public office
   does not violate section 17-110. NY State Bd. Of Elections, 1983
   Formal Opinion No. 8; Jones v Seneca Bd. of Elections, 83 AD2d
   982 (4th Dept 1981). While the restrictions of section 17-110
   would apply to such a candidacy, in our view they do not prohibit
   the receipt of campaign funds by a committee on behalf of the
   candidate. The statute, however, in addition to the
   restrictions in subdivisions 1 and 2, prohibits a police officer
   running for public office or for reelection from personally
   soliciting, collecting or directly receiving campaign funds.
   The Election Law does not define "officer or member of any
   police force." The 1940 opinion of this office (1940 St Dept Rep
   122) concluded that a sheriff was not an officer or member of a
   police force and therefore did not fall within the predecessor of
   current section 17-110 of the Election Law. That opinion stated:
   While a sheriff is a peace officer (Code of
   Criminal Procedure, Section 154), in my
   opinion a sheriff is not an officer or member
   of any police force in this State within the
   meaning of Section 756 of the Penal Law.
   At that time, the Election Law restrictions were located in
   section 756 of the Penal Law, and applied, as does the current
   statute, to a police commissioner or any officer or member of any
   police force of the State. Penal Law (1938), § 756.
   Significantly, when the 1940 opinion was issued section 154 of
   the Code of Criminal Procedure provided:
   § 154. Who are peace officers
   A peace officer is a sheriff of a county,
   or his under sheriff or deputy, or a county
   detective appointed pursuant to chapter
   sixty-two of the laws of eighteen hundred
   ninety-seven, as amended by chapter five
   hundred and thirty-two of the laws of
   nineteen hundred and by chapter five hundred
   and ninety-eight of the laws of nineteen
   hundred eleven, or a constable, marshal,
   police constable or policeman of a county,
   city, town or village . . ..
   Thus, at the time of our 1940 opinion, the term "peace
   officer" included a sheriff, undersheriff and deputy sheriff of a
   county and, as a separate category of peace officer, a policeman
   of a county, city, town or village. While there is little
   reasoning in the 1940 opinion, the distinction between these two
   categories seems to be the basis for the conclusion that section
   756 of the former Penal Law does not apply to the sheriff.
   The opinion also states, immediately prior to its conclusion,
   that the sheriff is an elective officer with criminal and civil
   duties.
   In subsequent opinions, we also concluded that a sheriff is
   not an officer or member of a police force within the meaning of
   section 756 of the former Penal Law (1963 Op Atty Gen [Inf] 182)
   and that sheriffs, under-sheriffs and deputy sheriffs do not fall
   within these restrictions (1971 Op Atty Gen [Inf] 131). These
   later opinions were based upon the 1940 opinion. The State Board
   of Elections reached the same conclusions, relying upon our 1971
   opinion. 1978 Formal Opinion No. 7.
   The 1971 opinion of the Attorney General also cites Matter
   of Gretzinger v Board of Elections of Monroe County (Sup Ct,
   Monroe County, June 4, 1970, unreported), affd, 34 AD2d 1095
   (4th Dept 1970). The court cited the 1940 and 1963 opinions of
   the Attorney General in finding that neither the sheriff nor a
   deputy sheriff is a member of a police force within the meaning
   of the Election Law restrictions. In its recitation of relevant
   facts, the court stated that the sheriff and his deputies are
   peace officers. Also, the court noted that the sheriff is an
   elected officer serving as an officer of the court and the
   sheriff's duties include custody of prisoners and care and
   maintenance of the county jail. Thus, the court found that the
   sheriff discharges civil and criminal duties and is an
   independent agent. The sheriff's deputies are employed by him
   personally, not by the county, and therefore the court concluded
   that the sheriff and his deputies are one and the same legally.
   Current State law defining a "police officer" and "peace
   officer" sharply contrasts with the definition of these terms at
   the time of our 1940 opinion. "Police officer" has been defined
   by the Criminal Procedure Law to include "[s]heriffs,
   under-sheriffs and deputy sheriffs of counties outside of
   New York City." Criminal Procedure Law § 1.20(34)(b). This
   definition of "police officer" is broadly and uniformly applied
   throughout the law to define the powers and training requirements
   of police officers. Sheriffs and deputy sheriffs no longer form
   a category separate and distinct from municipal police officers.
   Both groups now are "police officers." Whereas at the time of
   our earlier opinions "police officer" was a subcategory of "peace
   officer", these are now completely separate groups with distinct
   powers and training requirements. Classifications of "peace
   officers" exclusively are consolidated within section 2.10 of the
   Criminal Procedure Law. Peace officers have different law
   enforcement authority than police officers. Police officers have
   primary and general law enforcement obligations. See, Criminal
   Procedure Law §§ 120.10, 140.10, 690.25. Peace officers have
   more specialized law enforcement responsibilities focused on a
   particular locale and criminal activity and their powers are
   subject to employer regulation. Id., §§ 2.20(1)(i), 140.25.
   Police officers generally are exempt from the Penal Law
   prohibition on possession of firearms (Penal Law
   § 265.20[a][1][b]) whereas members of many categories of peace
   officers are required to obtain a license to possess a firearm
   (Criminal Procedure Law § 2.10).
   Thus, sheriffs and deputy sheriffs currently are police
   officers, not peace officers. Their powers under State law are
   the same as members of any other police department.
   Section 17-110 of the Election Law covers officers and
   members of a "police force." In our view, sheriffs and deputy
   sheriffs are members of a police force subject to the Election
   Law restrictions. The sheriff's department commonly is relied
   upon for the provision of general law enforcement services. Many
   counties include at least some areas that are not served by local
   police departments, which rely upon the sheriff for primary law
   enforcement through road patrol services. In these
   municipalities, the sheriff and his deputies provide general law
   enforcement and, therefore, are the police force. See, 1981
   Op Atty Gen (Inf) 193, 195-196.
   [A] sheriff has the power to enforce the law,
   which is what a police department does. If a
   sheriff provides a service to those
   municipalities that do not have a police
   force and does not provide the same service
   to municipalities that do have a police force
   and if that service is general law
   enforcement, the sheriff is in effect
   operating a "police department" even if it is
   called a "road patrol." Id.
   In some instances, the sheriff's department supplements local law
   enforcement. See, Op Atty Gen (Inf) No. 95-43. A rule like the
   Election Law provisions
   which prohibits a police officer from
   participating in the political arena, whether
   it be by soliciting votes or financial aid or
   by influencing any voter at any election,
   "comports with (the) sound administration
   policy that the removal of police personnel
   from active politics and from active
   participation in any movement for the
   nomination or election of candidates for
   political or public office is conducive to
   the effective maintenance of discipline and
   the preservation and promotion of the
   integrity and efficiency of the Police
   Department and its personnel." . . .
   [T]his rule prohibits a policeman from
   utilizing his status and authority as a law
   enforcement officer as the means to aid or to
   hinder a political entity. Purdy v
   Kriesberg, 47 NY2d 354, 361 (1979).
   It makes no sense to distinguish between sheriffs and deputy
   sheriffs, who are now police officers commonly performing general
   law enforcement functions, and members of other police
   departments.
   As the county executive pointed out in his letter, a similar
   analysis was made in applying restrictions applicable to the
   manufacture or sale of alcoholic beverages. Alcoholic Beverage
   Control Law § 128. Under these statutory provisions, it is
   unlawful for any "police commissioner, police inspector, captain,
   sergeant, groundsman, patrolman or other police official or
   subordinate of any police department in the state" to have
   certain direct or indirect interests in the manufacture or sale
   of alcoholic beverages. These restrictions have been applied to
   deputy sheriffs. Wilson v NYS Liquor Authority, 52 NY2d 741
   (1980); Rosica v State Liquor Authority, 69 AD2d 1015 (4th Dept
   1979). In an opinion of this office, we specifically concluded
   that these Alcoholic Beverage Control Law provisions apply to
   deputy sheriffs in that they are police officers under section
   1.20(34) of the Criminal Procedure Law. 1980 Op Atty Gen (Inf)
4. There is no substantive difference between "member of any
   police force," used in section 17-110, and ". . . patrolman or
   other police official or subordinate of any police department in
   the state." Also, like section 17-110, these restrictions
   eliminate potential conflicts involving official duties.
   We note, however, that deputy sheriffs have been found not
   to be members of a police force for purposes of residency under
   section 3 of the Public Officers Law. Section 3 establishes a
   requirement of residency in the municipality for officers of the
   municipality. Subdivision 2 of section 3 establishes an
   exception for a member of the police force of any political
   subdivision or municipal corporation.
   Neither the provisions of this section . . .
   requiring a person to be a resident of the
   political subdivision or municipal
   corporation of the state for which he shall
   be chosen or within which his official
   functions are required to be exercised, shall
   apply to the appointment of a person as a
   member of the police force of any political
   subdivision or municipal corporation of the
   state if such person resides . . .. Public
   Officers Law § 3(2).
   The Appellate Division without analysis narrowly held that
   "[w]hile petitioners may perform some criminal law enforcement
   activities, they are not members of the police force of any
   political subdivision or municipal corporation as contemplated by
   section 3." Myles v Phillips, 87 AD2d 614, 615 (2d Dept), affd,
   57 NY2d 692 (1982). Mazzo v County of Monroe, 58 AD2d 1017
   (4th Dept 1977) also holds that deputy sheriffs do not fall
   within the exception. The court reasoned that while the
   sheriff's department exercises police functions, it is more than
   a police department. 58 AD2d at 1018. The deputies act in the
   service of the public or the municipality in the performance of
   criminal duties but are personal agents of the sheriff in
   performing civil duties. Id. These broader duties of deputies
   traditionally have distinguished them from other police officers.
   Id. Further, the court emphasized that
   the Legislature had no difficulty in
   specifying that special deputy sheriffs were
   exempt from the residency requirements of the
   statute (§ 3(2-b)), thereby indicating that
   it considered a specific exemption for that
   class of deputy sheriffs necessary and that
   they were not otherwise exempt by the
   provisions of section 3(2) as members of a
   police force. Mazzo, supra.
   Section 3(2) of the Public Officers Law can be distinguished from
   section 17-110 in that it relates to an exception to residency
   requirements for holding public office. The cases cited above
   rely on legislative intent under the Public Officers Law. Also,
   exceptions from a general residency requirement for public
   officers should be narrowly construed. Exceptions must be
   strictly construed so that the major policy underlying the
   legislation itself is not defeated.
   Exceptions . . . extend only so far as
   their language fairly warrants, and all
   doubts should be resolved in favor of the
   general provision rather than the exception.
   Where a general rule is established by
   statute with exceptions, the court will not
   curtail the former nor add to the latter by
   implication, and it is a general rule that an
   express exception excludes all others. In re
   Charles' Estate, 200 Misc 452, 461 (NY
   Sur Ct), affd, 279 App Div 741 (1st Dept
   1951), affd, 304 NY 776 (1952).
   We believe that sheriffs and deputy sheriffs are subject to
   section 17-110 of the Election Law. In contrast to the law at
   the time of the 1940 opinion of the Attorney General, sheriffs
   and deputy sheriffs are now "police officers" with full police
   officer powers. Further, they commonly provide general law
   enforcement in areas of counties not served by municipal police
   departments and supplement local law enforcement. They are
   functionally no different from other municipal police officers.
   They fall within the terms and purpose of section 17-110 of the
   Election Law.
   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