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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

LIBRARIES -- Library Trustees (increase in their number)

EDUCATION LAW, §§226(1), 260(1), (2): Although the town board appoints the trustees of a public library, the trustees are empowered to increase their number, subject to the statutory maximum.

This is in reply to your letter concerning the appointment of public library trustees. You state that a town public library currently has seven trustees and that the town board has been asked to increase this number to nine. You ask whether the town board has the authority to increase the number of trustees and, if so, by what procedure and for what term the new trustees would be appointed. For purposes of this opinion, we assume the library is not governed by a special act of the State Legislature and that the library's charter contains no pertinent provisions.

Education Law, §260 provides that a town public library shall be managed by trustees numbering "not ... less than five nor more than eleven" (Education Law, §260[1]). Library trustees of a town public library are appointed by the town board (Education Law, §260[2]; see Cairo Public Library by Feinburg v Valentin, 132 Misc 2d 887, 505 NYS2d 821). Although section 260 prescribes the maximum and minimum number of library trustees and provides for the town board to appoint the trustees, it does not prescribe the manner of increasing the number of trustees.

Subdivision 1 of section 260 of the Education Law, however, provides that public library trustees "shall have all the powers of trustees of other educational institutions of the university as defined in this chapter" (see 1985 Opns St Comp No. 85-40, p 54). The general powers of trustees of educational institutions are set out in section 226 of the Education Law. Subdivision 1 of section 226 empowers trustees "unless otherwise provided by law" to "[f]ix the term of office and number of trustees ...". Thus, it is our opinion that the trustees appointed by the town board could increase their numbers subject to the statutory maximum of eleven.

As a general rule, when a statute commits a decision to a governing body and is silent as to the mode of its exercise, the governing body expresses its will by the adoption of a resolution at a duly convened meeting (McQuillin, Municipal Corporations, §15.06 [3d ed.]; Reese v Lombard, 47 AD2d 327, 366 NYS2d 493; 1988 Opns St Comp No. 88-76, p 145). Therefore, it is our opinion that the library board would increase the number of trustees by resolution at a meeting of the board (see Education Law, §260-a).

Although the decision to increase the number of trustees rests with the library board, Education Law, §260(2), as noted, provides that the town board appoints the trustees of a town library. Therefore, the town board would be responsible for choosing the persons to fill any additional trustee positions.

Finally, as to the term of office of the newly appointed trustees, we note that the authority of trustees generally to fix the term of office under section 226(1) of the Education Law is limited by the phrase "unless otherwise provided by law". In this regard, subdivision 2 of section 260 fixes the term of office of public library trustees at five years. Therefore, the trustees would be barred from providing a term of other than five years for the new trustees.

March 5, 1990
Robert E. Pease, Esq.
Town Attorney, Town of Somers