Can a NY town create a temporary flood disaster department and appoint the town supervisor as administrator, without a referendum?

Subject

A town may form a temporary flood disaster department and appoint its supervisor as administrator, with recusal on department matters

Plain-English summary

The Town of Middletown had experienced a flood emergency and wanted to set up a temporary flood disaster department to manage the recovery. The administrator would prepare paperwork for county, state, and federal damage-assessment offices, oversee aid disbursement, work with the highway superintendent and code enforcement officer, and develop emergency recovery plans. The town attorney asked two questions: did the local law need a referendum, and could the town supervisor be appointed as administrator?

The AG answered: no referendum needed, and yes, with safeguards, the supervisor can serve as administrator.

On the local law authority. Municipal Home Rule Law § 10(1)(ii)(a)(1) gives local governments power to enact local laws on the powers, duties, qualifications, number, mode of selection and removal, terms of office, and compensation of their officers and employees. § 10(1)(ii)(a)(12) extends that to laws relating to "government, protection, order, conduct, safety, health and well-being of persons or property therein," which is the broad grant of police power (New York State Club Association, People v Cook). The proposed flood disaster department fits within both grants.

On the referendum question. A referendum is required only if specifically authorized by act of the Legislature (Matter of McCabe v Voorhis; Mills v Sweeney). The Municipal Home Rule Law lists specific topics that trigger mandatory or permissive referenda (§§ 23, 24). The proposed local law does not create a new elective office or abolish, transfer, or curtail any power of an existing elective officer. The flood disaster department and administrator would be under the town board's normal supervision. The administrator would coordinate with elected officials (highway superintendent, etc.) but would not assume their powers. None of the § 23 or § 24 referendum triggers apply.

On the supervisor-as-administrator question. There is a structural incompatibility problem: the town supervisor is a member of the town board, which would supervise the flood disaster department. Holding both positions would put the same person on both sides of supervisory decisions affecting the department.

But the AG saw recusal as a workable remedy in this narrow context: the department is temporary, the administrator role benefits from someone who knows the town bureaucracy, and the conflict is bounded (board decisions about the department, rather than the entire scope of the supervisor's work). The supervisor should recuse himself from any town board deliberations affecting the department.

To make this clearer and avoid any common-law incompatibility argument, the AG recommended that the town board include in its local law a specific authorization for the supervisor to serve as flood disaster administrator. The local law should explain that the board weighed the conflict against the public benefit (institutional knowledge, continuity) and decided in favor of authorizing the dual role. A local law expressly authorizing the arrangement can overcome common-law incompatibility (1984 Op Atty Gen (Inf) 84). The supervisor can receive separate compensation for the administrator role.

Currency note

This opinion was issued in 1996. 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 doesn't the new department need a referendum?

Because the Municipal Home Rule Law's referendum triggers are specific (creating elective offices, abolishing or transferring power from elective officers, certain other changes to local government structure). Creating an appointed administrative department under existing board supervision does not fit any trigger. The default in New York is that local laws do not need referenda; the legislature must specifically require one.

How does the local law overcome common-law incompatibility?

Local law can establish public policy that overrides common-law rules in matters falling within home-rule authority. By specifically authorizing the dual role and explaining the public-interest reasons (continuity, knowledge), the town board makes a policy choice that displaces the common-law incompatibility analysis. The opinion recommends being explicit about the reasoning to make the override defensible.

What does recusal actually look like for the supervisor?

When the town board takes up any matter relating to the flood disaster department (budgeting for it, supervising it, performance evaluation of its administrator, abolishing it, etc.), the supervisor should leave the meeting, abstain from voting, and let the remaining board members decide. The recusal needs to be documented in the meeting minutes. Other than department-specific items, the supervisor functions normally as a board member.

Is the temporary nature of the department important to the analysis?

Yes. The AG specifically cited the "temporary duration" of the department as a factor making recusal workable. A permanent dual role would be harder to defend because the recusal burden would never end. For a temporary, emergency-response role, the bounded duration makes the arrangement reasonable.

Could the town instead designate an existing officer (like the highway superintendent) as administrator?

The opinion does not address that, but yes, the town could. The local law would simply designate the role and assign administrator duties to an existing officeholder. Different incompatibility issues might come up depending on which existing officer is chosen.

Statutory framework

Municipal Home Rule Law § 10(1)(ii)(a)(1) authorizes local laws on the powers, duties, qualifications, number, mode of selection and removal, terms of office, and compensation of local officers and employees.

Municipal Home Rule Law § 10(1)(ii)(a)(12) authorizes local laws on "government, protection, order, conduct, safety, health and well-being of persons or property therein."

Municipal Home Rule Law § 23 lists mandatory referendum triggers. § 24 covers permissive (petition) referendum triggers. Neither captures the proposed flood disaster department.

Common-law incompatibility (incompatible offices) can be overcome by local law specifically authorizing the dual role (1984 Op Atty Gen (Inf) 84).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-4_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Opn. No. 96-4
MUNICIPAL HOME RULE LAW §§ 10(1)(ii)(a)(1), 23, 24.

A town is authorized to establish a separate department to deal with a flood emergency and may appoint the person serving as town supervisor to the separate office of flood disaster administrator.

February 21, 1996

Dennis Metnick, Esq.
Town Attorney
Town of Middletown
P. O. Box 1011
Margaretville, NY 12455-1011

Informal Opinion
No. 96-4

Dear Mr. Metnick:

You have informed us that the Town of Middletown has experienced a flood emergency and has proposed a local law to form a temporary department, known as the flood disaster department, to deal with the emergency. First, you inquire whether the local law establishing the flood disaster department would be subject to a referendum.

The flood disaster department, headed by the flood disaster administrator, generally would be responsible for overseeing and supervising the recovery of the town from the flood. Specifically, the administrator would prepare the paperwork required by county, State and Federal offices to assess flood damage and would oversee the receipt and disbursement of aid to the town. He would work with the town highway superintendent, code enforcement officer and other town department heads in summoning the necessary resources to deal with the flood. He also would have responsibility for the development of any required emergency recovery plan.

You have informed us that the flood disaster department would be subject to supervision and control by the town board, like any other town department. Further, under the proposed local law the flood disaster administrator would work with other town department heads. No powers of elective officials of the town, such as the town highway superintendent, would be transferred to the flood disaster administrator. See, 1981 Op Atty Gen (Inf) 101.

In our view, the town is authorized by local law to establish the flood disaster department as generally described above. Local governments are authorized to enact and amend local laws, consistent with the Constitution and general State laws, in relation to the powers, duties, qualifications, number, mode of selection and removal, terms of office, compensation, etc. of their officers and employees. Municipal Home Rule Law § 10(1)(ii)(a)(1). Further, subject to the same restrictions, local governments may enact local laws relating to the government, protection, order, conduct, safety, health and well-being of persons or property therein. Id., § 10(1)(ii)(a)(12). This is the broad grant of police power to local governments. See, New York State Club Association, Inc. v City of New York, 69 NY2d 211 (1987); People v Cook, 34 NY2d 100, 105, (1974). We believe that the proposed local law falls within this grant of authority.

It is well established that a referendum may only be held if specifically authorized by act of the Legislature. Op Atty Gen (Inf) Nos. 93-8, 91-19; Matter of McCabe v Voorhis, 243 NY 401 (1926); Mills v Sweeney, 219 NY 213 (1916).

Local laws dealing with designated topics are subject to either a mandatory referendum or a referendum on petition. Municipal Home Rule Law §§ 23, 24. We see no basis for a referendum on your proposed local law. Significantly, the local law would not create a new elective office or abolish, transfer or curtail any power of an elective officer. Id., § 23(2)(f), (g). The flood disaster department and the flood disaster administrator would be subject to supervision and control by the town board like any other town department. The administrator, an appointed officer, would be required to work with other town elected officers but would not receive a transfer of any of their powers and duties. We conclude that the proposed local law is not subject to a referendum.

You also have asked whether the town supervisor of Middletown may be appointed to hold the additional office of flood disaster administrator. In prior opinions, we have found that offices are incompatible if one is subordinate to the other or if there is a conflict between the duties of the positions. Op Atty Gen (Inf) No. 95-12; Op Atty Gen (Inf) No. 93-3. In that the town supervisor is a member of the town board, which would be responsible for supervision and control of the flood disaster department, it would appear that the two positions are incompatible. We believe, however, in view of the temporary duration of the flood disaster department and its administrator and the apparent advantage of utilizing a person as administrator who is familiar with the town bureaucracy, that recusal is an appropriate remedy. As a member of the town board, the town supervisor should recuse himself from any deliberations or actions affecting the flood disaster department. To be certain that incompatibility does not present a problem, the town board might consider including in its local law a specific authorization for the town supervisor to be appointed as the flood disaster administrator. A local law, in establishing public policy, may overcome common law incompatibility. 1984 Op Atty Gen (Inf) 84. The local law should indicate that the town board has weighed the potential conflict between the two positions against the public benefit in having someone familiar with the town bureaucracy and resources serve as flood disaster administrator. We conclude that the town board may appoint the person holding the position of town supervisor as the flood disaster administrator, with separate compensation for that position.

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