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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 Department (establishment of position of deputy town police commissioner)
TOWN BOARD -- Powers and Duties (establishment of position of deputy town police commissioner)
LOCAL LAWS -- Abolition and Creation of Municipal Positions and Departments (establishment of position of deputy town police commissioner) -- Procedural Requirements (mandatory referendum - establishment of position of deputy town police commissioner)

TOWN LAW, §§24, 150; PUBLIC OFFICERS LAW, §9; MUNICIPAL HOME RULE LAW, §10(1)(ii)(a)(1), (d)(3); NY CONST, art VIII, §1: A town, by local law, may establish the office of deputy police commissioner to be appointed by the town board. If no term of office is provided in the local law, the deputy appointed by the board would serve at the pleasure of the board. Salary fixed by resolution, or other compensation paid pursuant to local law, should be commensurate with the duties of the office.

You ask whether a town board of a town which has established a police department and has appointed the town supervisor as commissioner pursuant to Town Law, §150, may appoint a deputy police commissioner to act in the absence or inability of the commissioner. If so, you ask whether the deputy police commissioner may be a paid position and serve at the pleasure of the town board.

Town Law, §150(2) authorizes the town board of any town in which a police department has been established to establish a board of police commissioners, the members of which board "shall serve without compensation, and at the pleasure of the town board". Section 150(2) also provides that the town board may designate the town supervisor to serve as police commissioner and have all the powers and duties of a board of commissioners. Neither section 150, nor any other provision of State law, however, provides for the establishment of the office of deputy police commissioner (cf. Town Law, §§20, 30[10], 32[2], 35[3], 42, providing for the establishment of deputy positions for various town offices; also see Public Officers Law, §9, which does not authorize the creation of deputy positions, but does provide a procedure for appointing a deputy to a duly created position when a procedure for appointment or election is not otherwise provided).

Although there is no State statute which authorizes the creation of the office of deputy police commissioner, a town has authority under the Municipal Home Rule Law, §10(1)(ii)(a)(1) to adopt local laws, not inconsistent with any general law or the Constitution, relating to "[t]he powers, duties, ... number, mode of selection and removal, terms of office, [and] compensation ... of its officers and employees". Pursuant to this provision, we believe that a town board has authority, by local law, to create the office of deputy police commissioner.

As to whether the deputy police commissioner may be appointed by, and serve at the pleasure of, the town board, Town Law, §20(1)(a) and (b) list certain elective offices in towns of the first and second class, respectively, and provides that "(a)ll other officers and employees ... shall be appointed by the town board except as otherwise provided by law." Pursuant to this provision, the town board would have the power to appoint the deputy commissioner. Further, if no term of office for the deputy is fixed by local law (see Municipal Home Rule Law, §§10[1][ii][a][1]), the deputy appointed by the town board would serve at the pleasure of the town board (Town Law, §24).

In our opinion, a local law establishing the position of deputy police commissioner would not be subject to any referendum requirement unless the town board has established the office of deputy town supervisor (see Town Law, §42). Where, however, the town has created the position of deputy supervisor, we believe that the local law would be subject to mandatory referendum pursuant to Municipal Home Rule Law, §23(2)(f) if the deputy police commissioner is empowered to act in the stead of the commissioner.

Municipal Home Rule Law, §23(f) provides that local laws which abolish, transfer or curtail powers of elected officials shall be subject to mandatory referendum. The town supervisor is generally authorized to appoint the deputy supervisor who, during the absence or inability of the supervisor to act, "shall be vested with all of the powers and may perform all of the duties of the supervisor under this chapter ...", with certain exceptions not applicable here (Town Law, §42). Thus, when the town supervisor serves as police commissioner, the deputy supervisor, pursuant to Town Law, §42, would perform the supervisor's functions as police commissioner in the absence or inability of the supervisor. If the town board, by local law, establishes the position of deputy police commissioner to be appointed by the town board to perform these functions, that local law would curtail the town supervisor's power to appoint a deputy supervisor having authority to act in his stead as police commissioner. Therefore, we believe that the local law would be subject to mandatory referendum. Of course, if the powers and duties of the newly created position of deputy police commissioner do not include acting in the stead of the commissioner, a mandatory referendum would not be required.

With respect to providing compensation for the deputy, Town Law, §27(1) authorizes a town board, by resolution, to fix the "salaries" of all town officers and employees and provides that salaries fixed by the town board "shall be in lieu of all fees, charges or compensation for all services rendered to the town". Pursuant to Municipal Home Rule Law, §10(1)(ii)(a)(1) and (d)(3), however, a town board may supersede, by local law, the salary requirement of section 27 and compensate certain officers on a per diem or hourly basis (see 1979 Opns St Comp No. 79-856, p 192; see also 1986 Opns St Comp No. 86-70, p 109).

Nothing in the Town Law or the Public Officers Law suggests that a deputy must serve without compensation. Therefore, even though the police commissioner serves without compensation pursuant to Town Law, §150, we believe that a town may compensate the individual holding the office of deputy police commissioner by salary pursuant to Town Law, §27(1), or adopt a local law providing for compensation on a per diem or hourly basis. We note, however, that to avoid contravening the prohibition against gifts of public moneys contained in article VIII, §1 of the State Constitution, the compensation fixed for the deputy commissioner should be commensurate with the duties of the office. In this regard, the town board may wish to provide in the local law establishing the office of deputy commissioner that the deputy is entitled to compensation only during the time he or she acts in the stead of the supervisor (see 1981 Opns St Comp No. 81-371, p 408).

May 8, 1990
Patricia C. Moore, Esq., Town Attorney
Town of Riverhead