Can a NY village set a fixed term of office for a police chief whose position is in the competitive class of civil service?

Subject

A municipality cannot set a term of office for a competitive-class civil service position, even an executive-level chief of police

Plain-English summary

The Village of Rye Brook wanted to establish a fixed term of office for its chief of police, who managed a 24-officer department that constituted about half the village's workforce and half its budget. The position was classified in the competitive class of civil service. The village attorney was aware that Formal Opinion 93-6 had previously concluded municipalities cannot impose terms on competitive-class positions, but argued that the analysis should not apply to high-level executive department heads.

The AG declined to draw that distinction. The result: no, the village cannot establish a term.

The reasoning rested on the structure of Formal Opinion 93-6 and the strong line between locally imposed terms and state-imposed terms.

Formal Opinion 93-6 read the case law as drawing this distinction. Cases like Matter of Phillips, 139 App Div 365 (3d Dept), affd, 200 NY 521 (1910), and Berg v Gerber, 59 AD2d 906 (2d Dept 1977), allowed competitive-class designations to coexist with terms of office, but those cases involved terms set by state law or state-established charters. The courts reconciled two state statutes. The principles of state-law-to-state-law statutory reconciliation do not extend to reconciling a local law with a state law: a local law must be entirely consistent with general state laws (NY Const Art IX § 2(c)). The local term would be inconsistent because the Civil Service Law's merit-and-fitness system contemplates continuous service for permanent appointees in the competitive class, prohibiting arbitrary removal.

The village's three counter-arguments all failed.

First, the village pointed to Roth v Cuevas, 82 NY2d 791 (1993), which upheld New York City's term limits for elected officials (mayor, comptroller, council members, public advocate, borough presidents). The AG distinguished it as dealing with elected office, not classified civil service. The constitutional and statutory protections that limit local power over competitive-class appointments do not apply to elected officials, who serve at the pleasure of voters and for whom term limits are a different question altogether.

Second, the village cited a line of cases stating that an independent officer who exercises a high degree of initiative and independent judgment may be removed without a hearing under § 75. The AG noted that those cases involved different categories of employees: O'Day v Yeager (veterans), Nolan v Tully (veterans and non-competitive class employees), and Gallagher v Griffin (an officer not in the classified service at all). The rationale that justifies easier removal for those categories does not extend to permanent competitive-class appointees.

Third, the village relied on § 76(4) (which preserves pre-existing state, local, or charter laws relating to removal of competitive-class persons, and allows collective bargaining substitutes for §§ 75 and 76 discipline procedures) as evidence that local term-setting was authorized. The AG rejected the inference. Section 76(4) addresses discipline procedures, not term length. The same for Unconsolidated Laws § 5711-q, the Westchester County police discipline provision, which protects competitive-class members from being fined, reprimanded, or dismissed except on written charges with a hearing.

Bottom line: the police chief's competitive-class status meant continuous tenure, removable only for cause under § 75. The village could not paper over that with a locally imposed term limit, even for a department head with executive responsibilities and significant budget authority.

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

What is the difference between competitive class and other classes?

New York civil service classifies positions into competitive, non-competitive, exempt, and labor classes. The competitive class is for positions filled through merit-and-fitness examinations. Once permanently appointed from a competitive list, the employee gets the strongest tenure protections, removable only for cause after a § 75 disciplinary hearing.

Could the village have asked the civil service commission to reclassify the position?

That option exists in theory. Some department-head positions are in the exempt class (which lacks the same tenure protections) or the non-competitive class. Reclassification has to be requested through the civil service commission having jurisdiction (here, presumably Westchester County's commission), and the reclassification has to be defensible: a position that could be examined for merit and fitness should usually be in the competitive class.

What distinguishes Roth v Cuevas?

Elected office. New York City's term limits apply to elected officials chosen by voters. The Civil Service Law and its tenure protections do not reach elected positions. The local-vs-state distinction the AG draws does not apply to elected positions because they are not in any civil service classification.

What about a sunset clause or a contract for performance review?

The AG opinion does not address performance review structures. A periodic performance review for a competitive-class chief is permissible (and common), but a removal at the end of a review period would still need to satisfy § 75: charges, notice, hearing. The protections that come with the competitive class follow the position, not the title of "chief."

What did the legislature intend by § 76(4)?

Section 76(4) preserves disciplinary mechanisms other than § 75 (specifically, pre-existing state, local, and charter laws, plus collective bargaining substitutes). It is about how discipline works, not about whether the position carries continuous tenure. The AG reads it as a discipline-procedure clause, not as authority to override the competitive-class continuous-tenure default.

Statutory framework

Civil Service Law § 75 sets the disciplinary procedure for competitive-class employees (and other tenured groups): charges in writing, hearing, and findings before removal, suspension, or fine.

Civil Service Law § 76 governs appeals from § 75 determinations. Subsection (4) preserves alternative disciplinary mechanisms in pre-existing state, local, or charter laws and authorizes collective bargaining substitutes.

Unconsolidated Laws § 5711-q applies to police departments in Westchester County. It requires written charges and a hearing before discipline (§ 5711-q(9)), and preserves other applicable disciplinary procedures (§ 5711-p).

Formal Opinion No. 93-6 is the controlling AG opinion on local terms of office for competitive-class positions.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-48_pw.pdf

Original opinion text

CIVIL SERVICE LAW §§ 75, 76(4); UNCONSOLIDATED LAWS § 5711-q.

A municipality is unauthorized to establish a term for an office in the competitive class of the civil service. This principle applies to a chief of police serving as the executive head of a municipality's police department, so long as that position is classified competitive.

September 28, 1995

Kenneth E. Powell, Esq.
Village Attorney
Village of Rye Brook
14 North Broadway
Tarrytown, NY 10591

Informal Opinion
No. 95-48

Dear Mr. Powell:

You have asked whether the Village of Rye Brook may establish a term of office for the office of chief of police, notwithstanding that the office has been placed in the competitive class of the civil service. You are aware of the Attorney General's Formal Opinion No. 93-6, concluding that a municipality may not impose a term of office on a position in the competitive class of the civil service. You do not request a reconsideration of that conclusion but inquire whether the scope of that opinion would include a department head serving in an executive capacity in high public office. Specifically, your inquiry deals with the chief of police, who in your village manages a 24-officer police department representing approximately one-half of the village's work force and approximately one-half of the annual village budget.

In Formal Opinion No. 93-6, we distinguished between competitive positions with terms of office established by "State" law and those with terms of office established "locally". Decisions cited in the opinion found that positions with terms of office established by State law constitutionally must be placed in the competitive class if examination of qualifications through merit and fitness is practicable. These cases also determined that there is no inevitable conflict between the terms of office and placement in the competitive class. The decisions reasoned that the requirements for competitive class appointments could be applied to the positions during the designated term. Our opinion emphasizes, however, that these decisions dealt with positions with terms of office created by State law or by State established charters. The courts reconciled two State laws. A statute establishing a term of office was reconciled with provisions of the Civil Service Law governing competitive appointments.

The question as to whether a local government may establish terms for positions in the competitive class invokes different legal issues involving the extent to which home rule powers are restricted by provisions of State law set forth in the Civil Service Law and Rules.

Formal Opinion No. 93-6 cites the broad power of local governments to enact local laws dealing with the powers, duties, qualifications, number, mode of selection and removal, and terms of office of local government officers and employees. Local laws, however, are required to be consistent with the provisions of the Constitution and general State laws. The opinion finds that the Civil Service Law is a general State law and, therefore, a local law establishing terms of office for positions in the competitive class must be consistent with its provisions. The opinion reasons that

[i]f that position is placed in the competitive class, service by incumbents who have received permanent appointment is continuous. Clearly, this was the intent of the Legislature in providing for appointments based on merit and fitness and prohibiting arbitrary removal.

Formal Opinion No. 93-6 concludes that a local law setting forth a term of office for a position in the competitive class is inconsistent with these concepts derived from provisions of the Civil Service Law governing competitive appointments. Unlike two State statutes which, under principles of statutory construction must be reconciled if possible, local laws must be entirely consistent with general State laws. Formal Opinion No. 93-6.

You have suggested that a municipality is authorized by local law to establish terms of office for high-level executive positions which have been classified as competitive. We have reviewed the arguments and cases cited in your letter and find no basis for a distinction. First, you cite Roth v Cuevas, 82 NY2d 791 (1993), holding that there is authority for a local law establishing limits on the number of consecutive terms that may be served by occupants of the offices of mayor, comptroller, city council member, public advocate and borough president in the City of New York. This case is not relevant in that it deals with elected positions which are not in the classified service.

You also have cited cases holding that placement of a position in the competitive class is not inconsistent with the position's term of office. These cases, however, also cited in Formal Opinion No. 93-6 and discussed above, deal with terms of office established by State, rather than local law. Matter of Phillips, 139 App Div 365 (3d Dept), affd, 200 NY 521 (1910); Berg v Gerber, 59 AD2d 906 (2d Dept 1977). There, the courts followed accepted principles of statutory construction and reconciled two State statutes.

You have cited a line of cases standing for the proposition that an independent officer who exercises a high degree of initiative and independent judgment may be removed without a hearing under section 75 of the Civil Service Law. The cases you have cited, however, do not deal with positions in the competitive class but rather with veterans (Matter of O'Day v Yeager, 308 NY 580 [1955]); veterans and individuals in the non-competitive class (Matter of Nolan v Tully, 52 AD2d 295 [3d Dept 1976]); and with an officer not in the classified service where the issue was whether a dismissal was based on patronage or the need to ensure that policies which the electorate has sanctioned are effectively implemented (Matter of Gallagher v Griffin, 93 Misc 2d 174 [Sup Ct Erie Co 1978]). The rationale of these decisions does not extend to individuals classified in the competitive class of the civil service. Matter of O'Day, supra; Matter of Nolan, supra.

Finally, your reference to section 76(4) of the Civil Service Law as a limitation on tenure of persons in the competitive class and, therefore, a signal that locally established terms of office for competitive positions are authorized, is not convincing. Section 76(4) preserves pre-existing State, local or charter laws relating to removal or suspension of persons in the competitive class and authorizes the replacement of the procedure for discipline in sections 75 and 76 with procedures developed through collective bargaining. Thus, section 76(4) only establishes that discipline under sections 75 and 76 is not exclusive. Nor does section 5711-q of the Unconsolidated Laws, which applies to police departments in Westchester County, erode the tenure of persons in the competitive class of the civil service. That provision makes it clear that no member of a police force may be fined, reprimanded or dismissed except upon written charges with an opportunity to be heard. Unconsolidated Laws § 5711-q(9). Like section 76(4), it preserves other applicable disciplinary procedures. See, id., § 5711-p.

We conclude that a municipality is unauthorized to establish a term for an office in the competitive class of the civil service. This principle applies to a chief of police serving as the executive head of a municipality's police department, so long as that position is classified competitive.

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.

Very truly yours,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions