If a New York village has a police department, must it employ a chief of police, or can the village board eliminate the position when the current chief retires?

Plain-English summary

The Skaneateles village board wanted to eliminate the chief-of-police position when the current part-time chief retired. The village had three full-time officers and several part-timers. The Village Attorney asked: do we have to have a chief?

Village Law § 8-800(1) reads: "[t]he board of trustees of a village may, by resolution, establish a police department in such village and appoint a chief of police and such personnel as may be needed." The Village's argument was that "may" applied throughout, so the chief was optional once the department existed.

The AG read the section as a two-step. The first "may" (whether to establish a department) is permissive. Once the department exists, the appointment of a chief is mandatory. That is how the AG had read the parallel language in Town Law § 150 in 1975 and how the Op. Att’y Gen. (Inf.) No. 95-58 treated the village provision. The State Comptroller had reached the same conclusion in Op. St. Comptr. No. 63-293.

The legislative history backed it up. The phrase "a chief of police" was added to § 8-800 in 1985 (ch. 810) specifically to require a chief once a village had a police department. The sponsor's memorandum talked about the increasing complexity of running a police department and the desire for parallel rules between villages and towns (since Town Law § 150 already required a chief). The 1985 act included a grandfather clause for villages that, as of August 2, 1985, had a police department but had not established the office of chief of police.

Skaneateles had a chief from at least 1975. So the grandfather clause did not apply.

The AG also addressed Civil Service Law § 58(1-c), which requires any political subdivision with a police department serving 150,000 or fewer people and more than four full-time officers to maintain the office of chief of police. Skaneateles had only three full-time officers and a population of about 2,700, so § 58(1-c) by its terms did not apply. But the AG read the two 1985 provisions (Village Law and Civil Service Law) as complementary, not exclusive: they were enacted in the same session, by the same sponsors, on the same date, with the same purpose. Civil Service Law § 58(1-c) extended the chief-of-police requirement to political subdivisions of a certain size that were not already covered by Village Law § 8-800 or Town Law § 150. It did not narrow the Village Law's reach.

Currency note

This opinion was issued in 2012. 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: How does the grandfather clause work?
A: Section 2 of ch. 810 of the Laws of 1985 excepts from the new requirement any village that, as of August 2, 1985, had a police department but had not yet established the office of chief of police. Such a village can keep operating its department without a chief. Any village that had a chief on that date (or established a department after that date) is locked into the chief-of-police requirement.

Q: Did the AG's office really change its mind from earlier opinions? A: No. The Op. Att’y Gen. (Inf.) No. 95-58 read Village Law § 8-800(1) that way, and a 1975 opinion read identical Town Law § 150 language similarly. The State Comptroller had read Town Law § 150 the same way in Op. St. Comptr. No. 63-293. The 2012 opinion reaffirmed and applied that consistent reading.

Q: Could a village just eliminate its police department to avoid having a chief? A: The AG says a village need not establish a police department and must employ a chief as long as it continues to have one. The opinion does not decide whether or how an existing department may be abolished.

Q: How do Civil Service Law § 58(1-c) and Village Law § 8-800 fit together? A: § 8-800 requires a chief in any village with a police department (subject to the 1985 grandfather clause). § 58(1-c) requires a chief in any political subdivision (including towns, cities, counties, etc.) with a police department of more than four full-time officers serving a population of 150,000 or less. The two overlap heavily but cover slightly different ground. The AG read § 58(1-c) as filling in coverage for political subdivisions not already reached by § 8-800 or Town Law § 150.

Q: Why was this important enough for the Legislature to standardize? A: The AG cites legislative materials describing growing complexity in police administration and a goal of professionalizing municipal police leadership. It reads the Village Law and Civil Service Law amendments as complementary coverage rules.

Background and statutory framework

Village Law § 8-800 governs the establishment of village police departments. Section 8-800(1) authorizes the board of trustees to establish a department by resolution. Subsequent provisions deal with appointments, removals, residency, qualifications, and so on. Town Law § 150 contains parallel language for town police departments and has long been read to require a chief once the department is established.

Civil Service Law § 58 sets minimum standards for police officers and for the office of chief of police. Civil Service Law § 58(1-c) (added in 1985) imposes the chief-of-police requirement on certain political subdivisions based on department size and population served.

The opinion describes the 1985 amendments as aimed at professionalizing local police leadership. Both ch. 810 (Village Law) and ch. 840 (Civil Service Law) were enacted on the same day, August 2, 1985, with immediate effective dates. The statutory grandfather clause in ch. 810, § 2, was designed to avoid forcing existing chief-less police departments to retroactively create the position.

Citations and references

Statutes:

• Village Law § 8-800
• Town Law § 150
• Civil Service Law § 58

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2012-8_pw.pdf

Original opinion text

Village Law §§ 8-800, 8-800(1); Session Laws 1985 Ch 810, 1985 Ch 840; Town Law § 150; Civil Service Law §§ 58, 58(1-c)

A village that has a police department must have a chief of police, unless the grandfather clause applies.

September 6, 2012

Michael J. Byrne
Informal Opinion
Village Attorney
No. 2012-8
Village of Skaneateles
Byrne, Costello & Pickard, P.C.
Tower I, Suite 1600
100 Madison Street
Syracuse, New York 13202-2721

Dear Mr. Byrne:

You have requested an opinion regarding whether the Village must employ a chief of police for its police department. The police department currently has a part- time police chief, three fulltime officers, and several part-time officers. The Village established and has maintained the position of chief of police since at least 1975. You have explained that the current police chief anticipates retiring in the near future, and the Village board of trustees would like to eliminate the position of chief of police upon his retirement. As explained below, we are of the opinion that the Village must employ a police chief.

Village Law § 8-800(1) provides that "[t]he board of trustees of a village may, by resolution, establish a police department in such village and appoint a chief of police and such personnel as may be needed . . . ." You have suggested that this language permits but does not require that a chief of police be appointed. We disagree. As you know, we previously have interpreted the phrase, "may, by resolution, establish a police department in such village and appoint a chief of police," as permissive with respect to the establishment of a police department but, upon such establishment, mandatory with respect to the appointment of a police chief. Op. Att'y Gen. (Inf.) No. 95-58; 1975 Op. Att'y Gen. (Inf.) 229 (identical language in Town Law § 150); see also Op. St. Comptr. No. 63-293. Thus, a village need not establish a police department but if it does, it must also establish the position of chief of police.

This conclusion is consistent with the legislative history to the statute. In 1985, the phrase "a chief of police" was added to section 8-800 to impose a

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requirement that a village with a police department appoint a chief of police. Mem. of Intro., reprinted in Bill Jacket for ch. 810 (1985), at 5. The expressed intent was to address the increasing complexity and demands of running a police department. Id. at 6. The amendment also established uniformity between the police departments of villages and towns, required to have a chief of police by Town Law
§ 150, throughout the state. Letter from A. Seminerio, Assembly Member, to G. Crotty, Counsel to Governor (June 29, 1985), reprinted in Bill Jacket for ch. 810 (1985), at 10. The amendment included a grandfather clause excepting from the law's application a village that, as of the law's effective date (August 2, 1985), had a police department and had not established the office of chief of police. Act. of Aug. 2, 1985, ch. 810, § 2.

Applying these provisions to the Village, because it established a police department and the position of chief of police before 1985, pursuant to Village Law § 8-800(1) the Village must employ a chief of police as long as it continues to have a police department.

Nor does Civil Service Law § 58(1-c) compel a different conclusion. Civil Service Law § 58 provides that "any political subdivision maintaining a police department serving a population of [150,000] or less and with positions for more than four full-time police officers, shall maintain the office of chief of police." That provision does not apply to the Village, because you have advised that the Village has a population of about 2700 and, as described above, has only three fulltime officers. We are of the opinion, however, that the Village Law's provision requiring a police chief is not affected by the fact that the Civil Service Law's provision requiring a police chief does not also apply here.

Amendments requiring employment of a police chief were added to the Village Law and the Civil Service Law in the same legislative session, introduced by the same sponsors, and enacted on the same date, both with immediate effective dates. Act of Aug. 2, 1985, ch. 810 (Village Law); Act of Aug. 2, 1985, ch. 840 (Civil Service Law). Both measures were intended to professionalize the leadership of municipal police departments. Mem. of Intro., reprinted in Bill Jacket for ch. 810 (1985), at 6; Sponsor's Mem., reprinted in Bill Jacket for ch. 840 (1985), at 5. The coverage provisions of the two measures use language that is similar, but not identical. The Village Law provision applies to all villages, while the Civil Service Law provision applies to all political subdivisions with a police department of a certain size that serves a population of a specified size. In light of the shared history and purpose of the two provisions, and the differences in the language of their coverage provisions, we are of the opinion that Civil Service Law § 58(1-c) most sensibly is understood not as limiting the reach of other police chief provisions, but rather as extending the requirement of a police chief to those political Page 3

subdivisions with a police department of a certain size that serves a population of a specified size that were not already covered by the police chief provisions contained in other law, such as Village Law § 8-800 and Town Law § 150. So viewed, Opinion of the Attorney General No. 95-58 is consistent with both Village Law § 8-800(1) and Civil Service Law § 58(1-c).

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,

KATHRYN SHEINGOLD
Assistant Solicitor General in Charge of Opinions