Can a non-charter New York county adopt a local law that lets the county legislature, instead of the community services board, appoint the local director of community services?

Plain-English summary

A non-charter New York county had tried to amend by local law the way it filled the position of local director of community services, the chief executive officer of the county's local governmental unit (LGU) for mental hygiene services. State law (Mental Hygiene Law § 41.09(a)) provides that, in non-charter counties, the community services board picks the director. Charter counties have flexibility to provide otherwise; non-charter counties do not. The county nevertheless adopted a local law giving its county legislature, not the board, the power to appoint the director. A second non-charter county was contemplating the same move.

The state mental-hygiene agencies (OASAS, OMH, OMRDD) asked the AG to confirm that the local law was invalid. The AG concurred. Article 41 of the Mental Hygiene Law announces a substantial state concern: the unified, statewide planning and delivery of mental-hygiene services, with each county's LGU at the center of local administration. Section 41.09(a)'s appointment rule is reasonably related to that concern. The board, not the legislature, sets the LGU's policy in non-charter counties; placing director-appointment power in the legislature instead of the board would let the legislature override or undermine the board's policy choices through control over the person tasked with implementing them. The director would be answerable to two masters with overlapping authority over their position and pay, and the AG read that as the kind of conflict article 41 was designed to prevent.

Because the subject was a substantial state concern, the local law could not stand. Under City of New York v. Patrolmen's Benevolent Ass'n and Matter of Kelley v. McGee, when a state statute relates to a substantial state concern, local home-rule supersession yields. The treatment of charter and non-charter counties differently was permissible: a classification in a substantial-state-concern statute is fine if it is reasonable and related to the State's purpose, and the AG found the charter/non-charter distinction reasonable because the two categories of counties have meaningfully different administrative structures.

Currency note

This opinion was issued in 2011. 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

Q: What's the practical difference between a charter county and a non-charter county here?
A: Charter counties typically have a county executive or administrator (independent of the legislature) who appoints department heads, sometimes subject to legislative confirmation. Non-charter counties vest both legislative and executive authority in the board of supervisors, and that board generally appoints county officers (County Law § 400(4)(a) and similar provisions). Section 41.09(a) recognizes that division by letting charter counties decide for themselves how to appoint the director, while keeping the appointment power in the community services board (an executive body) in non-charter counties.

Q: How did the AG conclude that the appointment rule served a substantial state concern?
A: Article 41's stated purposes include "the most effective and economical utilization of new and existing state, local governmental, and private resources to provide [mental hygiene] services" and the "direction and administration, by each local governmental unit, of a local comprehensive planning process." The AG read those statewide aims as substantial state concerns. Section 41.09(a) protects them by ensuring that the body that sets policy for the LGU (the community services board) also picks the executive who carries policy out.

Q: What's the doctrinal hook?
A: When a statute concerns a substantial state matter, home rule does not block it from binding local governments (Patrolmen's Benevolent Ass'n; Adler v. Deegan; Wambat Realty). When the subject is purely local (Osborn v. Cohen on local fire department control; Resnick v. County of Ulster on filling vacancies in the legislature), home rule prevails. The opinion fits article 41 into the first category, identifying a state interest that transcends parochial concerns.

Q: Can a charter county put director-appointment power in its legislature?
A: The opinion did not directly answer that. Section 41.09(a) gives charter governments flexibility ("Charter governments may provide for appointment and removal of directors in a manner authorized by such governments"), so the question for a charter county is what the charter itself provides. The opinion's holding is limited to non-charter counties.

Q: What about the de facto officer doctrine, in case the bad appointment was already made?
A: The opinion did not address de facto officers; that's typically a remedy question for litigation rather than an AG opinion. But the AG's analysis suggests that a local law contradicting § 41.09(a) was not a valid source of authority, so a director appointed under it should have been replaced under § 41.09(a)'s default appointment process.

Q: What was OASAS, OMH, and OMRDD's interest in raising this question?
A: They oversee article 41 and rely on the LGU structure to gather local plans that feed into statewide planning under Mental Hygiene Law § 5.07(b). If a county legislature could appoint and effectively control the director, the LGU's policy independence (and therefore the state's planning architecture) would be compromised.

Background and statutory framework

Local administration of mental-hygiene services in New York runs through LGUs established under Mental Hygiene Law article 41. Every county that wants state aid for these services has to set up an LGU vested with responsibility for service delivery. The LGU is governed by a community services board (§ 41.05(b)) and headed by a local director of community services (§§ 41.03(8), 41.05(c)). Policy authority sits with the board, except that charter governments can move all or part of that authority to the director.

Section 41.09(a) handles director appointment. In charter governments (defined as New York City or any county with a charter), the charter rules. Everywhere else, the community services board appoints. The 1972 recodification first introduced this charter-vs.-non-charter distinction (it had not existed in the 1954 original), and the explanatory memorandum from the Joint Legislative Committee on Mental and Physical Handicap is explicit that charter counties have the option of running the board as advisory, with the director appointed however the charter provides, while non-charter counties do not.

The legal architecture above all this is Article IX of the State Constitution (the home rule provision) and the Municipal Home Rule Law's § 10. Counties have broad authority to legislate on their own property, affairs, and government, and on the powers and duties of their officers and employees, but only consistently with general laws. Special laws (those that don't apply to all counties) can still bind a county if they relate to a substantial state concern, which is exactly the doctrine the opinion deploys here.

Citations and references

Statutes:
- Mental Hygiene Law article 41
- Municipal Home Rule Law § 10
- N.Y. Const. art. IX (home rule)
- County Law § 400

Cases:
- City of New York v. Patrolmen's Benevolent Ass'n, 89 N.Y.2d 380 (1996) (substantial state concern overrides home rule)
- Uniformed Firefighters Ass'n v. City of New York, 50 N.Y.2d 85 (1980) (residency law as substantial state concern)
- Matter of Kelley v. McGee, 57 N.Y.2d 522 (1982) (DA salary statute as substantial state concern; reasonable classifications permitted)
- Wambat Realty Corp. v. State, 41 N.Y.2d 490 (1977) (Adirondack Park regulation as substantial state concern)
- Matter of Osborn v. Cohen, 272 N.Y. 55 (1936) (fire department control as purely local)
- Matter of Resnick v. County of Ulster, 44 N.Y.2d 279 (1978) (legislator vacancy filling as purely local)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2011-F1_pw.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Mental Hygiene Law §§ 5.01, 5.07(b), 5.07(b)(1), Article 41, 41.01, 41.03(1), 41.03(2),
41.03(3), 41.03(8), 41.05(a), 41.05(e), 41.05(b), 41.05(c), 41.09(a), 41.11(a), 41.11(b),
41.13(8), 41.13(9), 41.13(11), 41.13(16); Municipal Home Rule Law §§ 10(1)(i), 10(1)(ii)(a);
New York State Constitution Article IX § 2, Article IX § 2(b)(2), Article IX § 2(c)(i), Article IX
§ 2(c)(i)(1), Article IX § 3(a)(3), Article IX § 3(d)(1), Article IX § 3(d)(4); County Law
400(4)(a), 475(1), 500(1); Highway Law 100; Arts & Cultural Affairs Law 57.07(1)

Mental Hygiene Law § 41.09(a) relates to a substantial state concern, and thus a non-charter
county may not legislate inconsistently with it to provide that the county legislature appoint the
community services director.

February 7, 2011

Robert A. Kent
General Counsel
New York State Office of
Alcoholism & Substance Abuse Services

Formal Opinion
No. 2011-F1

John V. Tauriello
Deputy Commissioner & Counsel
New York State Office of Mental Health

Kerry A. Delaney
Deputy Commissioner & Counsel
New York State Office of
Mental Retardation & Developmental Disabilities

New York State Department of Mental Hygiene
Inter-Office Coordinating Council
1450 Western Avenue
Albany, NY 12203

Dear Messrs. Kent and Tauriello and Ms. Delaney:

You have requested an opinion concerning the authority of a non-charter county to
change the method of appointing a local director of community services established by the
Mental Hygiene Law. You represent the several state offices that, taken together, comprise the
Department of Mental Hygiene. Mental Hygiene Law § 5.01. Your responsibilities include the
development of statewide comprehensive plans for the provision of state and local services for
the mentally ill, the mentally retarded and developmentally disabled, and those suffering from
alcoholism and substance abuse. Id. § 5.07(b)(1).

Your offices have regulatory jurisdiction over Article 41 of the Mental Hygiene Law.
The purpose of Article 41 is to encourage cooperation between state and local government
entities in providing local and unified preventive, rehabilitative, and treatment services to these
populations. Id. § 41.01. In addition, the statute provides for state financial aid to counties to
support provision of these services. In order to be eligible for this state aid, each county must
establish a local governmental unit (LGU) that is vested with responsibility for the provision of
services for mentally disabled persons (e.g., a county mental health department). Mental
Hygiene Law § 41.03(1), (3); id. § 41.05(a), (e). The LGUs must develop local comprehensive
plans from which the offices you represent develop the statewide plans. Id. § 5.07(b).

The LGUs have other responsibilities, including making policy for and exercising general
supervisory authority over or administering local services and facilities provided by or
supervised by it, Mental Hygiene Law § 41.13(8); furthering programs for special education and
training, id. § 41.13(9); serving as a center for the promotion of community and public
understanding of mental disabilities and of the services necessary for their care and treatment, id.
§ 41.13(11); and identifying and planning for the provision of care coordination and emergency
services for high-need patients under Kendra's Law, id. § 41.13(16).

An LGU is governed by a community services board, id. § 41.05(b), and a chief
executive officer, the local director of community services. Id. §§ 41.03(8), 41.05(c). The
policy-making functions of the LGU vest in the board, except that a "charter government" may
choose to vest all or some of the policy-making authority in the local director. Id. § 41.05(c). A
charter government is defined as either New York City or any county with a charter under article
IX of the New York Constitution and the Municipal Home Rule Law. Id. § 41.03(2).

Members of the community services board are appointed by the county or, in the case of
New York City, by the mayor. Mental Hygiene Law § 41.11(a), (b). The director is appointed
by the board, except that a charter county may provide a different mechanism for appointing and
removing the director:

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.

Id. § 41.09(a). The director's salary and expenses are set by the appointing authority. Id.

You have explained that a non-charter county has adopted a local law authorizing the
county legislature, rather than the community services board as required by Mental Hygiene Law
§ 41.09(a), to appoint the director of community services. Another non-charter county is
considering such local legislation. You believe Mental Hygiene Law § 41.09(a) relates to a
substantial state concern and thus cannot be superseded by a non-charter county's local law. As
explained more fully below, we believe your interpretation of this statute is reasonable and
rational and thus concur with it.

I. Legislative History and Purpose

Community services boards were first authorized in 1954, and from the beginning a
board's members appointed the director of the board, who served as the board's chief executive
officer. See Act of Feb. 12, 1954, ch. 10, § 1, 1954 N.Y. Laws 22, 24-25. As originally enacted,
no distinction was made between charter counties and non-charter counties.

In 1972, the Mental Hygiene Law was recodified, and the community services provisions
first distinguished between the authority of charter governments and non-charter governments,
adopting the language present today. See Act of May 9, 1972, ch. 251, §§ 11.05(c) (where
policy-making functions could be vested), 11.09(a) (entity authorized to appoint and remove
director), 1972 McKinney's N.Y. Laws 468, 484. These provisions were explained as follows:

The recodification recognizes existing practice which permits local
governments which have adopted a charter form of government to
have a Department of Mental Health with an advisory board. The
bill requires a board in every local governmental unit but in charter
forms of government the local government has the option of
making such a board advisory rather than executive. In such case,
the Director of Community Services may be appointed in the
manner authorized by such governments. In local governments
which have not adopted a charter form of government, the board
appoints the director.

Memorandum of Joint Legislative Committee on Mental and Physical Handicap (March 19,
1971), reprinted in Bill Jacket for ch. 251 (1972), at 11.

Although renumbered, the language of former sections 11.05(c) and 11.09(a), now
sections 41.05(c) and 41.09(a), has not changed since it was enacted in 1972.

The Legislature explained the purposes to be served by article 41:

This article is designed to enable and encourage local
governments to develop in the community preventive,
rehabilitative, and treatment services offering continuity of care; to
improve and to expand existing community programs for the
mentally ill, the mentally retarded and the developmentally
disabled, and those suffering from the diseases of alcoholism and
substance abuse; to plan for the integration of community and state
services and facilities for the mentally disabled; and to cooperate
with other local governments and with the state in the provision of
joint services and sharing of manpower resources.

In order to further the development, for each community in this
state, of a unified system for the delivery of such services, this
article gives to a local governmental unit the opportunity to
participate in the state-local development of such services by
means of a unified services plan. Such a plan is designed to be a
mechanism whereby the department, department facilities, and
local government can jointly plan for and deliver unified services
to meet the needs of the consumers of such services. The unified
services system will strengthen state and local partnership in the
determination of the need for and the allocation of services and
more easily provide for the most effective and economical
utilization of new and existing state, local governmental, and
private resources to provide services. A uniform ratio of state and
local government responsibility for financing services under a
unified services plan is established by this article to eliminate
having the types of services provided in a community be
determined by the local government's share of the cost of a
particular program rather than the needs of the community.

It requires the direction and administration, by each local
governmental unit, of a local comprehensive planning process for
its geographic area in which all providers of services shall
participate and cooperate in the provision of all necessary
information. It also initiates a planning effort involving the state,
local governments and other providers of service for the purpose of
promoting continuity of care through the development of
integrated systems of care and treatment for the mentally ill,
mentally retarded and developmentally disabled, and for those
suffering from the diseases of alcoholism and substance abuse.

Mental Hygiene Law § 41.01.

II. Analysis

Article IX of the Constitution establishes the home rule authority of local governments,
including counties. Section 2 of article IX authorizes a local government to adopt local laws
relating to its property, affairs, or government as long as those laws are consistent with the
provisions of the Constitution and any general law. N.Y. Const. Art. IX, § 2(c)(i). It also
authorizes a local government to adopt local laws that relate to certain enumerated subjects,
including the mode of selection and removal of its officers and employees, again as long as the
local laws are consistent with the Constitution and general laws, and additionally except to the
extent that the Legislature restricts the adoption of such a local law relating to other than the
local government's property, affairs, or government. Id. § 2(c)(ii)(1). These grants of power are
legislatively enacted in section 10 of the Municipal Home Rule Law. Municipal Home Rule
Law § 10(1)(i), (ii)(a). Concomitantly, the state Legislature generally may legislate in relation to
a local government's property, affairs, or government only by general law.

When a statute relates to a "substantial state concern," however, the State may freely
legislate notwithstanding the legislation's impact on local concerns. City of New York v.
Patrolmen's Benevolent Ass'n, 89 N.Y.2d 380, 390-91 (1996).

Home rule simply is not implicated when the Legislature acts in
areas "other than the property, affairs or government of a local
government" [citing N.Y. Const. Art. IX, § 3(a)(3)]. Under the
limited meaning of his phrase, legislation of State import does not
impinge upon municipal home rule simply because it touches
matters that concern the affairs or property of the [local
government].

Uniformed Firefighters Ass'n v. City of New York, 50 N.Y.2d 85, 90 (1980). Consequently, if
the subject matter of a special law is an area of substantial state concern, a local government
governed by it cannot supersede it by enacting an inconsistent local law. Matter of Kelley v.
McGee, 57 N.Y.2d 522, 539, n.14 (1982); see Blass v. Cuomo, 168 A.D.2d 54, 57 (2d Dep't
1991); see also Op. Att'y Gen. (Inf.) No. 98-19.

A matter of state concern is one in which the subject matter is in need of legislative
attention of sufficient importance to the State that it transcends local or parochial interests or
concerns. Wambat Realty Corp. v. State, 41 N.Y.2d 490, 494-95 (1977). Special laws that have
been deemed to serve a substantial state interest include those regulating the public health and
safety of the people of New York City, Adler v. Deegan, 251 N.Y. 467 (1929), protecting the
resources of the Adirondack park region, Wambat Realty Corp. v. State, 41 N.Y.2d 490 (1977),
the residential mobility of members of the civil service, Uniformed Firefighters Ass'n v. City of
New York, 50 N.Y.2d 85 (1980), salaries of district attorneys as the officers responsible for
enforcing state penal laws and representing the State in criminal matters, Matter of Kelley v.
McGee, 57 N.Y.2d 522 (1982), and the orderly resolution of collective bargaining disputes
involving police and fire unions, Patrolmen's Benevolent Ass'n v. City of New York, 97 N.Y.2d
378 (2001). In contrast, the organization and control of a local fire department, Matter of Osborn
v. Cohen, 272 N.Y. 55 (1936), and the method of filling vacancies in the office of county
legislator, Matter of Resnick v. County of Ulster, 44 N.Y.2d 279 (1978), have been held to be
purely local concerns.

The stated purpose and legislative history of a state statute are relied upon to determine
whether a substantial state concern underlies the statute. City of New York v. Patrolmen's
Benevolent Ass'n, 89 N.Y.2d at 392. The statute must also reasonably relate to that state
concern. Id. at 393.

The Legislature enunciated the purposes of article 41 of the Mental Hygiene Law,
including the "most effective and economical utilization of new and existing state, local
governmental, and private resources to provide [mental hygiene] services," which requires the
"direction and administration, by each local governmental unit, of a local comprehensive
planning process" for the provision of these services. Mental Hygiene Law § 41.01. We agree
with your opinion that this reflects a substantial state concern.

In addition, when viewed in the context of the typical differences between charter and
non-charter counties' administrative structure, we believe that section 41.09(a), governing the
appointment of a community services director, relates to that state concern. Counties were
granted broad authority to adopt charters that set forth the structure of their government,
including assigning executive and administrative functions, powers, and duties to officers and
agencies, in 1959. Act of Apr. 20, 1959, ch. 569, § 1, 1959 McKinney's N.Y. Laws 708.
Typically, county charters provide for an executive or administrator who is independent of the
county legislature and who administers the daily functioning of county government. See Local
Government Handbook, N.Y. Dep't of State (5th ed. 2008), at 44 available at
http://www.dos.state.ny.us/lgss/pdfs/Handbook.pdf. The county executive or administrator in
charter counties is usually authorized to appoint and remove department heads. Id. at 45. In
contrast, in non-charter counties, both legislative and executive powers reside in the board of
supervisors, see id. at 43-44, and the board of supervisors is generally responsible for appointing
appointive county officers, see County Law § 400(4)(a) (appointive officers generally); see, e.g.,
id. § 475(1) (board of supervisors appoints clerk of board of supervisors); id. § 500(1) (board of
supervisors appoints county attorney); Highway Law § 100 (board of supervisors appoints
county highway superintendent); Arts & Cultural Affairs Law § 57.07(1) (board of supervisors
appoints county historian).

By designating the community services board as the body in non-charter counties that
makes policy with respect to the provision of mental hygiene services in the county, the Mental
Hygiene Law grants the exercise of this executive power to the community services board, away
from the legislative body. Cf. Memorandum of Joint Legislative Committee on Mental and
Physical Handicap (March 19, 1971), reprinted in Bill Jacket for ch. 251 (1972), at 11 (charter
counties may make the community services board an advisory, rather than executive, board).
The Legislature then placed the authority to appoint the community services director, the
individual responsible for administering and implementing the community services board's
policies, with that board. Transferring the authority to appoint the community services director
from the community services board to the county legislature, which in non-charter counties has
no executive function with respect to the provision of mental hygiene services, would allow the
county legislature to, through its appointment, undermine the policy-making authority of the
community services board. The community services director would be responsible for
implementing the community services board's policies, but also would need to be responsive to
the county legislature because his position and his compensation would be determined by it.
This would place him in an untenable position of answering to two different bodies with direct
oversight of him. Such a conflict on the part of the director would hinder the stated purposes of
article 41, including "the most effective and economical utilization of new and existing state,
local governmental, and private resources to provide services" and the "direction and
administration, by each local governmental unit, of a local comprehensive planning process" for
the provision of services within the relevant geographic area. Mental Hygiene Law § 41.01.

Thus, in summary, we agree that the Legislature has enunciated in article 41 a substantial
state concern that is served by the mechanism for appointment of the community services
director provided in section 41.09(a), and therefore local legislation must be consistent.
Although the Legislature has decided to treat charter and non-charter counties differently
under section 41.09(a), such a distinction does not prevent the conclusion that section 41.09(a)
relates to a substantial state concern. "Once a statute is found to involve an appropriate level of
State interest, the fact that it effects a classification among the local governments it regulates
does not render the enactment invalid so long as that classification is reasonable and related to
the State's purpose." Matter of Kelley v. McGee, 57 N.Y.2d at 540 (citations omitted). As
discussed above, we believe that a distinction between charter and non-charter counties in this
instance is reasonable, because of the different executive structures found in the two classes of
counties. Additionally, the distinction relates to the purposes of article 41, including directing
and administering a local planning process for the provision of mental hygiene services within a
county and effectively and economically providing those services.

We therefore concur with your conclusion that Mental Hygiene Law § 41.09(a) relates to
a substantial state concern, and that a non-charter county may not legislate inconsistently with it
to provide that the county legislature appoint the community services director.

Very truly yours,

ERIC T. SCHNEIDERMAN
Attorney General