This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

POLICE AND POLICE PROTECTION -- Police Chief (delegation of power to determine promotions) -- Police Department (delegation to chief of police of power over promotions)
LOCAL LAWS -- Transfer of Functions (delegation to chief of police of power over promotions)

TOWN LAW, §§150, 152; MUNICIPAL HOME RULE LAW, §10(1)(ii)(a), (d)(3): A town board may adopt a local law, subject to mandatory referendum, transferring the town board's power over promotions within the police department to the chief of police.

You ask whether the town board, which presently awards all promotions within the town police department, may delegate that authority to the chief of police.

Town Law, §150(1) authorizes the town board of any town to establish a town police department, appoint a chief of police and such officers and patrolmen as may be needed and fix their compensation. Town boards are also authorized to determine, in accordance with applicable civil service and other statutory requirements, that promotions of officers and members of the police department shall be made (Town Law, §152).

If a town board creates a police commission or designates the town supervisor as commissioner, the commission or commissioner shall have and exercise all powers conferred upon the town board with respect to the police department, including the power to determine promotions (Town Law, §150[2]). There is no similar authority in the Town Law, however, to confer upon the chief of police the power to award promotions.

While the Town Law does not authorize the town to delegate the power to determine promotions to the chief of police, we note that Municipal Home Rule Law, §10(1)(ii)(a)(1) empowers local governments to adopt and amend local laws, not inconsistent with the Constitution or any general law, relating to, among other things, the powers and duties of its officers and employees. Additionally, section 10(1)(ii)(d)(3) authorizes a town to supersede any provision in the Town Law relating to the property, affairs or government of the town or to other matters in relation to which and to the extent to which it is authorized to adopt local laws, subject to certain stated exceptions which are not relevant here. Pursuant to the foregoing provisions of the Municipal Home Rule Law, it is our opinion that a town may adopt a local law transferring to the chief of police the power to determine that promotions of officers and members of the police department be made.

We note, however, the Municipal Home Rule Law, §23(2)(f) provides that any local law which abolishes, transfers or curtails the powers of elected officials shall be subject to mandatory referendum. Therefore, since a local law delegating the power over promotions from the town board to the chief of police would transfer a power of the elected town board, it would be subject to mandatory referendum.

December 29, 1989
John C. Jilnicki, Esq., Deputy Town Attorney
Town of East Hampton