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A provision in a town code that is intended to supercede a statutory provision must comply with the statutory method set by law

A provision in a town code that is intended to supercede a statutory provision must comply with the statutory method set by law
Matter of Guzdek v Mohan, 2008 NY Slip Op 08875, Decided on November 14, 2008, Appellate Division, Fourth Department

The Amherst Town Board adopted a resolution providing for the appointment of three officers to fill vacancies in the Town?s Police Department.

When Satish Mohan, the Town Supervisor, declined to comply with the Board?s action, Edward W. Guzdek, Jr., the President of the Amherst Police Club, sued in an effort to obtain a court order directing Mohan to fill the vacancies.

Mohan argued that pursuant to Section 4-10 of the Town of Amherst?s Code, he had the authority to appoint officers to the Town Police Department. The Supreme Court disagreed, holding that the Code was inconsistent with Town Law §150. The court said that Town Law §150 provides that the appointment of police officers "is a legislative function within the exclusive jurisdiction of the town board," citing a 1980 opinion of the Attorney General [1980 Informal Opinion 249].

The Appellate Division affirmed the Supreme Court?s ruling, holding that although the Amherst Town Board may delegate its authority to appoint police officers to the Town Supervisor by designating the Supervisor to serve as police commissioner as authorized by Town Law §150.2, it had not done so. Nor, said the court, does Section 4-10 of the Code effectively supersede the provisions of Town Law §150 with respect to the Town Board's authority to make appointments to the Town Police Department.

Section 150.1 of the Town Law provides, in pertinent part that ?The town board of any town may establish a police department and appoint a chief of police and such officers and patrolmen as may be needed and fix their compensation.?

The Appellate Division concluded that Section 4-10 did not "substantial[ly] adhere to the statutory methods to evidence a legislative intent to ? supersede those provisions of [Town Law §150] sought to be ? superseded? and dismissed Mohan?s appeal.

On this point, Section 150.2, in pertinent part, provides that ?The town board may also by resolution designate the supervisor to serve as police commissioner, and when so designated, such supervisor shall have all the powers of and perform the duties of such board of police commissioners.? In this instance the court, in effect, ruled that that no such resolution had been adopted and that Section 4-10 of the Town Code was not sufficient to demonstrate such a legislative intent.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08875.htm

Full post as published by New York Public Personnel Law on December 02, 2008 (boomark / email).