Can a New York village board sign a multi-year contract with a police chief that runs past the elected term of the board members who signed it?

Plain-English summary

Brockport's Village Attorney asked whether a multi-year employment contract between the Village Board of Trustees and the Village Police Chief was binding on a successor board when the contract's term extended past the elected terms of all the board members who signed it. The board members served staggered two-year terms; the contract reached past 2005, after the last current term would expire.

Attorney General Eliot Spitzer's office gave a nuanced answer. New York has long held that a municipal legislative body cannot enter into a professional-services contract for a governmental function that binds its successors. That rule traces back to Abrams v. Horton (1897) and has been reaffirmed many times. Police protection is a "governmental" function, not a "proprietary" one, so the rule applies to police chief contracts. The board, therefore, could not lock in a successor board to a contract for a police chief.

But "void" is too strong. New York appellate courts have held that the extended term is not void from the start; it merely permits a successor board to refuse to honor the extended portion. The contract remained valid for the original signing board's tenure, and only the extended-term provision was subject to disaffirmation by a successor board. Where evidence is absent that both parties intended to violate the law, courts construe a contract in favor of its legality.

Currency note

This opinion was issued in 2004. 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.

The successor-board doctrine, the governmental/proprietary distinction, and the rules around severance of extended-term provisions have been developed further in subsequent appellate decisions. A village considering a long-term contract for a department head or other governmental position should consult current case law and any applicable collective bargaining provisions before signing.

Common questions

Q: What is the successor-board rule?
A: A municipal legislative body cannot enter into a professional-services contract for a governmental function that binds future legislative bodies. The rule rests on the principle that elected officials must retain discretion over governmental functions.

Q: What is the difference between "governmental" and "proprietary" municipal functions?
A: Governmental functions are things only governments do (police, fire, courts, taxation). Proprietary functions are things a government does that essentially substitute for private enterprise (running a parking garage, operating a marina). The successor-board rule applies to governmental contracts, not proprietary ones. Matter of Karedes v. Colella, 100 N.Y.2d 45 (2003), draws this line.

Q: Is the police chief a "governmental" employee?
A: Yes. Miller v. State and Wilcox v. Rochester hold that police protection is a traditional governmental function.

Q: If the contract isn't void, what does the successor board actually have to do to disaffirm it?
A: The successor board must take affirmative action. Until it does, the contract remains in force. The Third Department in Matter of Ramapo Carting Corp. v. Reisman held that the extended term "would not render the contract void, but would permit the successor [municipal] Board to determine that it is not bound by the extended term provision."

Q: What if the contract has severance, benefit, or termination provisions tied to the extended term?
A: Matter of Lake v. Binghamton Housing Auth. allowed the rest of the contract (including termination benefits) to survive even after the extended-term provision was invalidated. Courts try to give effect to the parties' intent while neutralizing the unlawful extension.

Q: Why doesn't the original board's term-limit constraint void the whole contract?
A: Because doing so would punish parties who acted in good faith, and the law usually limits the unlawful portion rather than killing the whole agreement. Bloomfield v. Bloomfield states the canonical rule: "[w]hen evidence is lacking that both parties intended to violate the law, a contract that may be construed both lawfully and unlawfully should be construed in favor of its legality."

Background and statutory framework

The successor-board doctrine has its roots in Abrams v. Horton, 18 A.D. 208 (2d Dep't 1897), and was extended through Morin v. Foster (1978), Edsall v. Wheler (1967), and Matter of Harrison Cent. Sch. Dist. v. Nyquist (1977). The Court of Appeals refined the doctrine in Matter of Karedes v. Colella, distinguishing governmental from proprietary functions. The rule is policy-driven: elected officials must be free to exercise their own discretion over the legislative and governmental functions of the municipality.

The remedy doctrine, also developed through appellate practice, treats the extended portion of the contract as voidable, not void. The municipal body can fulfill the contract during its own term, leaving the disaffirmation question for the next board. If a successor board chooses to honor the contract, no one is forced to dishonor it. If the successor wishes to disaffirm, it may do so without rendering the entire contract void.

This balance reflects two values: protecting successor boards' discretion and protecting good-faith municipal contract counterparties from arbitrary contract destruction.

Citations and references

Cases:

• Matter of Karedes v. Colella, 100 N.Y.2d 45 (2003)
• Morin v. Foster, 45 N.Y.2d 287 (1978)
• Matter of Harrison Cent. Sch. Dist. v. Nyquist, 59 A.D.2d 434 (3d Dep't 1977)
• Edsall v. Wheler, 29 A.D.2d 622 (4th Dep't 1967)
• Abrams v. Horton, 18 A.D. 208 (2d Dep't 1897)
• Miller v. State, 62 N.Y.2d 506 (1984)
• Wilcox v. Rochester, 190 N.Y. 137 (1907)
• Matter of Ramapo Carting Corp. v. Reisman, 192 A.D.2d 922 (3d Dep't 1993)
• Matter of Lake v. Binghamton Housing Auth., 130 A.D.2d 913 (3d Dep't 1987)
• Highlands v. Weyant, 38 A.D. 256 (2d Dep't 1972)
• Bloomfield v. Bloomfield, 97 N.Y.2d 188 (2001)

Prior AG opinions:

• Op. Att'y Gen. (Inf.) No. 90-50
• 1979 Op. Att'y Gen. (Inf.) 190

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2004-8_pw.pdf

Original opinion text

Although a village board is not authorized to enter a professional employment contract for a governmental service that extends beyond the life of the board, a contract that extends beyond that term, if otherwise valid, would remain in effect until disaffirmed by a successor board.

July 1, 2004

Edward W. Riley, Esq.
Village Attorney
Village of Brockport
49 State Street
Brockport, New York, 14420

Informal Opinion
No. 2004-8

Dear Mr. Riley:

You have requested an informal opinion about whether a written employment contract between the Village Board of Trustees ("the Board") and the Village Police Chief, an appointed official, for a term extending beyond the elected term of any member of that Board, is binding on the Village. If the contract is non-binding, you ask about the extent to which it is void. You further noted the absence of any statute or local law specifically authorizing the Board to bind a successor Board to such a contract.

As your letter suggests, prior case law and opinions of this Office recognize that, absent specific statutory authority, a municipal governing body such as the Board does not have the power to enter into a professional employment contract for the performance of governmental functions that will be binding on that body's successors. See, e.g., Matter of Karedes v. Colella, 100 N.Y.2d 45 (2003); Morin v. Foster, 45 N.Y.2d 287 (1978); Matter of Harrison Cent. Sch. Dist. v. Nyquist, 59 A.D.2d 434 (3d Dep't 1977), lv. denied, 44 N.Y.2d 645 (1978); Edsall v. Wheler, 29 A.D.2d 622 (4th Dep't 1967); Abrams v. Horton, 18 A.D. 208 (2d Dep't 1897); Op. Att'y Gen. (Inf.) No. 90-50. The reason for this rule is that elected officials must be able to exercise legislative and governmental powers within their own sound discretion: thus, municipal officials are generally prohibited from legislating in these areas in a manner that limits the discretion of their successors. See Matter of Karedes, 100 N.Y.2d at 50; Morin, 45 N.Y.2d at 293; Op. Att'y Gen. (Inf.) No. 90-50.

In Matter of Karedes, the Court of Appeals clarified that a legislative body may bind a successor board with respect to proprietary matters. 100 N.Y.2d at 50 ("In business or proprietary matters, by contrast, a municipality is not necessarily bound by [the term-limits] standard and may conduct itself as any other private business under similar circumstances."). However, the subject of your inquiry, the provision of police protection, involves a traditional governmental function, not a proprietary matter. See, e.g., Miller v. State, 62 N.Y.2d 506, 512 (1984) (the maintenance of general police protection involves a purely governmental function for purposes of sovereign immunity); Wilcox v. Rochester, 190 N.Y. 137, 144 (1907) (appointment and maintenance of police force is governmental duty for purposes of municipal liability). Cf. Matter of Karedes, 100 N.Y.2d at 50 ("Proprietary functions are those 'in which governmental activities essentially substitute for or supplement traditionally private enterprises.'" (quoting Sebastian v. State of New York, 93 N.Y.2d 790, 793 (1999))). Thus, a contract for employment of a police chief is the type of professional services contract that falls within the purview of the rule against binding successor boards.

It therefore follows that unless specifically authorized by statute, an employment contract with the Village Police Chief may not extend beyond the life of the Board that enters into that contract. Under those circumstances, such a contract would constitute an invalid exercise of the power of the existing Board and could be revoked by a successor Board. See, e.g., Matter of Ramapo Carting Corp. v. Reisman, 192 A.D.2d 922, 923 (3d Dep't 1993); Matter of Harrison Cent. Sch. Dist. v. Nyquist, 59 A.D.2d 434.

You have further asked whether a contract that purports to be binding on future Boards would be void ab initio and thus unenforceable against the Village Board that entered the contract. In addressing the effect of similar contracts providing for an extended term, New York courts have concluded that the "term [of employment] would not render the contract void, but would permit the successor [municipal] Board to determine that it is not bound by the extended term provision of that contract." Matter of Ramapo Carting Corp. v. Reisman, 192 A.D.2d at 923 (citing Matter of Lake v. Binghamton Housing Auth., 130 A.D.2d 913, 915 (3d Dep't 1987)). In Matter of Lake, which involved facts similar to those described in your request, the Third Department affirmed an order invalidating as void, on public policy grounds, only so much of a multi-year employment contract between a local housing authority's board of directors and its executive director as provided for a term of employment extending beyond the term of the contracting board. See 130 A.D.2d at 915; id. (noting that since the trial court "clearly invalidated only the extended term provisions of petitioner's contract," "there was nothing inconsistent" about "granting petitioner the various termination benefits provided for in the contract").

This analysis is consistent with the principle that courts should avoid "declar[ing] void contracts formally entered into by a municipality which deal with a subject matter for which the municipality has the undoubted right to contract, simply because the contracts might extend for too long a period." Highlands v. Weyant, 38 A.D. 256, 257 (2d Dep't) (emphasis omitted) (declining to declare contracts between sewer and water districts and village void ab initio based upon unlimited duration), appeal dismissed, 30 N.Y.2d 948 (1972).

Likewise, under ordinary principles of contract interpretation, courts will generally limit a written employment contract and related agreement whose long or unlimited duration makes it unreasonable or void and unenforceable to a reasonable period, to best effectuate the intent of the parties. It will then enforce the contract as limited rather than invalidate it in its entirety. Moreover, "[w]hen evidence is lacking that both parties intended to violate the law, a contract that may be construed both lawfully and unlawfully should be construed in favor of its legality." Bloomfield v. Bloomfield, 97 N.Y.2d 188, 193 (2001).

In light of this practice, it appears that the public policy concerns that preclude municipal legislators from entering into an employment contract for performance of a governmental function that is binding beyond the term of that legislature would not serve as an absolute bar to the enforcement of such a contract that is for a lawful municipal purpose and is otherwise valid. Accordingly, it is our opinion that the extended term of the Village Police Chief's employment contract, standing alone, would not render that contract void and unenforceable during the existence of the Board that entered into it. Assuming that there is no independent legal barrier to its enforcement (which we do not address here), such a contract could remain in effect until disaffirmed by a successor Board.

The Attorney General issues formal opinions only to officers and departments of State government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,
LAURA ETLINGER
Assistant Solicitor General
In Charge of Opinions

By: _____
Melanie Oxhorn
Assistant Solicitor General