Can a NY town agree to provide police protection only to a village inside the town and skip the rest of the town?

Subject

A town may not provide selective police protection to one village while excluding the rest of the town

Plain-English summary

The Village of Alden and the Town of Alden each lacked their own police department. Both relied on the Erie County Sheriff. The village attorney asked whether the town could contract or otherwise arrange to provide police protection only to the village portion of the town, not to the area outside the village.

The AG said no. Town Law § 150(1) allows a town to create a town police department, but the cost is a town-wide charge. If the town runs its own department, it is required to serve the entire town, including any incorporated village within it that does not maintain its own four-or-more-officer department. The selective arrangement Alden proposed, with town-funded policing for the village but nothing for residents outside, ran directly against that statutory structure.

The AG also walked through the alternatives that did exist for the village.

A county sheriff can contract for enhanced road patrol with municipalities that want it. The AG cited the 1981 opinion (1981 Op Atty Gen (Inf) 193) that grounded that power in the sheriff's County Law § 650 duty as conservator of the peace, recognized as a common-law power rather than a statutory mandate. The county legislature can authorize basic patrol funded county-wide and offer enhanced service to any municipality that contracts and pays. Alden could renegotiate its existing sheriff contract along those lines.

General Municipal Law Article 5-G authorizes interlocal agreements broadly. A village can contract with another municipality (a neighboring town or village with a police department) for police services. Article 5-G's legislative history supports a broad reading of joint and cooperative provision of functions.

General Municipal Law § 121-a allows a town and a village wholly within it to create a joint town-village police department. The mechanism requires propositions adopted separately by town and village voters, then a joint session of the two boards to organize and adopt rules.

Executive Law § 226(1) allows a village to contract with the Superintendent of State Police for police services.

The bottom line: the selective town-arrangement idea was not authorized. The other four mechanisms were. The village had to pick one of those if it wanted dedicated police above what the sheriff provided.

Currency note

This opinion was issued in 1995. 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

Why couldn't the town just police the village portion?

Because Town Law § 150(1) ties a town police department to town-wide funding and town-wide responsibility. The legislature wanted town departments to function as town departments, not as locality-specific police forces serving only one geographic slice of the town. Allowing the Alden arrangement would have let the town opt out of policing for the rural residents whose property tax payments contributed to a town-wide structure.

Could the village have created its own police force?

Yes. Village Law § 8-800 lets the board of trustees establish a village police department by local action and abolish it by local law subject to permissive referendum. The opinion does not focus on this option because the village was looking for arrangements that avoided creating its own department.

What does a sheriff "enhanced road patrol" contract typically cover?

Above and beyond the basic level of coverage the sheriff provides county-wide, contracting municipalities pay for additional patrol hours, sometimes dedicated officers, sometimes specific shifts. The Erie County Sheriff at the time already had such contracts with the Villages of Alden and Springville. The AG framed renegotiation of that existing contract as a practical path.

What is a joint town-village police department under § 121-a?

A combined police department serving both the town and a village wholly within it, jointly governed. Setup requires a proposition adopted at general or special election in the village, a separate proposition in the town, then a joint session of the town board and village board to organize. The departments share staffing, budget, and command structure.

What does Article 5-G of the General Municipal Law authorize?

Interlocal cooperation. Two or more municipalities can jointly provide any function, power, or duty that each separately possesses. For policing, two villages or a village and an adjacent town with a police department could agree to share coverage. The 1991 Formal Opinion 91-F1 cited here treated Article 5-G's legislative history as supporting broad municipal cooperation without needing specific implementing legislation.

Statutory framework

Town Law § 150(1) authorizes town police departments and makes their cost a town-wide charge. Town departments created after January 1, 1960, may not assess village property for the department's costs when the village maintains a four-or-more-officer police department of its own. Town departments predating that date may enter cost-sharing agreements with their villages.

Village Law § 8-800 authorizes village police departments through board of trustees action, abolishable by local law subject to permissive referendum.

General Municipal Law § 121-a authorizes joint town-village police departments by paired propositions.

General Municipal Law Article 5-G (sections 119-m, 119-n, 119-o) authorizes interlocal cooperation generally.

County Law § 650 makes the sheriff conservator of the peace within the county, the source of the sheriff's common-law power to provide road patrol service.

Executive Law § 226(1) authorizes villages to contract with the Superintendent of State Police for police services.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-43_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Opn. No. 95-43
COUNTY LAW § 650; EXECUTIVE LAW § 226(1); GENERAL MUNICIPAL LAW ART 5-G §§ 119-m, 119-n, 119-o, 121-a; TOWN LAW § 150(1); VILLAGE LAW § 8-800.

The Village and Town Laws do not permit an arrangement whereby the Town of Alden would provide law enforcement only to the Village of Alden and not to the area of the town outside the village. Other alternatives exist for the provision of law enforcement to the village.

August 30, 1995

Chris G. Trapp, Esq.
Village Attorney
Village of Alden
1400 Main Place Tower
Buffalo, New York 14202-3714

Informal Opinion
No. 95-43

Dear Mr. Trapp:

You inquire as to whether a town may contractually or otherwise provide police protection to only a portion of its geographic area, in this instance, a specific village, which it would not extend to town residents living outside that village. You indicate that neither the Town of Alden nor the Village of Alden currently maintain their own police departments; rather, they rely on the Erie County Sheriff to provide law enforcement services.

The Village Law states that "[t]he board of trustees of a village may . . . establish a police department in such village and . . . [t]he board of trustees may abolish a police department established pursuant to this section by local law, subject to permissive referendum". Village Law § 8-800.

Similarly, the Town Law provides authority for a town to create and maintain a town police department. Town Law § 150 authorizes the town board of any town to establish a police department and states that the cost of the department is a charge throughout the entire town. Town Law § 150(1). Thus, a town may elect to create and maintain a police department. However, if the town chooses to have a police department, a town-wide charge applies, including incorporated villages. Id.

As to town police departments established after January 1, 1960, no assessments may be made on property in any village within the town for the maintenance or operation of the police department, if the village maintains a police department of four or more police officers on an annual full-time basis. Id. With regard to town police departments established prior to January 1, 1960, the town may enter into agreements with any village concerning the assessment of costs. Id.

The legislative intent behind this statutory framework is clear. As we held in Informal Opinion No. 88-77, if a town maintains a police department, it is required to provide law enforcement services throughout the town, including any village which does not have its own police department. We cannot extract from Town Law § 150(1) any authority for the establishment of a town police department that would serve only one particular village and not the area of the town outside the village. Thus, the selective provision of law enforcement envisioned by your inquiry is simply antithetical to the intended purpose of section 150.

You also have asked whether the sheriff by contract can provide comprehensive law enforcement services to the village. We understand that the Erie County sheriff currently contracts with the Villages of Alden and Springville to provide increased road patrol coverage beyond the basic level of service provided in the two municipalities. You might consider renegotiation of your village's contract with the sheriff to increase the overall level of road patrol service provided to the village.

In a 1981 opinion of this office, we concluded that a sheriff may provide road patrol by contract to those municipalities that desire it. 1981 Op Atty Gen (Inf) 193. In that opinion, we cited the sheriff's duty under section 650 of the County Law to serve as conservator of the peace within the county. We noted that historically it has been the duty of sheriffs in their various jurisdictions to preserve the peace, enforce the laws and arrest and commit to jail felons and other violators of the statutory or common law. The provision of road patrol service is not mandated by statute but instead falls within the sheriff's common law power to enforce the laws. We reasoned that while the sheriff is an independently elected officer, as a local officer his office is subject to the county legislative body's determination of how to allocate limited resources to the various departments of county government. We found, based on the above factors, that a county legislative body can authorize provision of road patrol strictly on a contract basis to those municipalities in the county that request the service. Applying the reasoning of the 1981 opinion, we believe that a county can allocate funds for basic road patrol service in the county and provide for enhanced road patrol by contract in those municipalities that desire the service.

Other alternatives may be available to the Village of Alden. For example, your village also has authority under General Municipal Law Art. 5-G to contract with another municipality for the provision of police services to the village. See, Op Atty Gen (Inf) No. 81-62. The broad language of Article 5-G authorizes the joint or cooperative provision of any functions, powers and duties which each municipality possesses. (A town with a police department would have responsibility to serve a village within the town, in any event.) As we noted in Formal Opinion No. 91-F1, the legislative history of Article 5-G indicates a clear purpose to authorize municipal cooperation generally, without specific implementing legislation.

Also, your village might consider the creation of a joint town and village department under General Municipal Law § 121-a. Under section 121-a, a town and an incorporated village located wholly within the town may create a joint town and village police department. A proposition to establish the joint department must be submitted at a general election or special election in the village and separately in the town. Upon the adoption of the propositions, the town board and the village board of trustees are required to meet in joint session to organize the joint police department and establish the rules of operation. See, Op Atty Gen (Inf) No. 89-16.

Finally, your village may consider contracting with the Superintendent of State Police under Executive Law § 226(1) for the provision of police services to the Village of Alden.

We conclude that the Village and Town Laws do not permit an arrangement whereby the Town of Alden would provide law enforcement only to the Village of Alden and not to the area of the town outside the village. Other alternatives exist for the provision of law enforcement to the village.

The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.

Sincerely,

JOSEPH CONWAY
Assistant Attorney General