Can a New York village vote to abolish its police department, and what does the legal process look like?

Plain-English summary

The Solvay Village Attorney asked whether voters could vote on a proposal to abolish the village police department and how to set it up. The AG laid out the procedure.

The default rule. Direct democracy in New York is the exception, not the rule. Government by elected representatives is the default. Mills v Sweeney, 219 NY 213 (1916), Browne v City of New York, 241 NY 96 (1925), and Matter of McCabe v Voorhis, 243 NY 401 (1926) all stand for the proposition that a municipality cannot put a question to the voters unless the State Legislature has specifically authorized it.

The Legislature has authorized this one. Village Law § 8-800 establishes the procedure for abolishing a village police department. The board of trustees must first pass a local law to abolish the department. Once the local law is on the books, it falls into the Article 9 permissive-referendum machinery (Village Law §§ 9-902 and 9-908). A referendum will be held only if (a) the requisite number of village electors files a petition asking for one, or (b) the board of trustees itself calls for a referendum.

Three outcomes are possible. If a referendum is held and the voters approve abolition, the police department is abolished on the terms set in the local law. If a referendum is held and the voters defeat the proposition, the police department is retained. If no referendum is called or petitioned for within the statutory window, the local law takes effect 30 days after adoption under Village Law § 9-902(1), and the police department is abolished without a public vote.

That last outcome is worth a moment. The default operation of the statute means that voters who want to keep the police department do not just sit out. They have to organize a petition for a referendum or count on the trustees to call one. If neither happens, abolition becomes effective by default.

Currency note

This opinion was issued in 1998. 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 does the village need a local law before any vote?

Because that is what Village Law § 8-800 requires. The substantive policy decision is the local law. The referendum, if one is held, is voter approval of that local law. Without the local law as the underlying enactment, there is nothing to vote on.

How many signatures does a petition for the referendum require?

Article 9 of the Village Law sets the threshold. The exact percentage depends on the village's population and other factors. A village attorney pursuing this route should check the current Village Law text for the specific requirement.

How long do voters have to circulate a petition?

The window is set by Article 9 of the Village Law and is typically 30 days from the date of adoption. The local law takes effect 30 days after adoption if no petition is filed and the trustees do not call a referendum, so the 30-day clock is critical.

Can the board of trustees abolish the police department immediately without giving voters a chance?

Procedurally no. The 30-day window is built into the permissive-referendum machinery. The trustees must pass the local law, then wait 30 days for voters to petition or for the trustees to call a referendum. After 30 days with no triggering action, the local law takes effect.

What happens to existing officers if the department is abolished?

The opinion does not address this. Officers' rights on the dissolution of a police department depend on civil service status, collective bargaining agreements, and the terms of the abolishing local law. Those issues would need to be analyzed separately.

Background and statutory framework

Village Law § 8-800. The specific statute authorizing abolition of a village police department by local law subject to permissive referendum.

Village Law Article 9. Sets the general framework for permissive referendum on local laws. § 9-902 establishes when a local law is subject to permissive referendum and the 30-day window for triggering events. § 9-908 covers the petition mechanism.

Constitutional baseline. The State Legislature is required to authorize all referenda. The Court of Appeals (Mills, Browne, McCabe) has confirmed this in a line of cases dating back over a century.

Prior AG opinions. 1985 Op Atty Gen (Inf) 57 and 1978 Op Atty Gen (Inf) 287 cited for the rule that referenda require State authorization.

Citations

• Village Law § 8-800 (abolition of village police department by local law).
• Village Law § 9-902 (permissive referendum machinery for local laws).
• Village Law § 9-902(1) (30-day effective date if no referendum triggered).
• Village Law § 9-908 (permissive referendum petitions).
• Mills v Sweeney, 219 NY 213 (1916); Browne v City of New York, 241 NY 96 (1925); Matter of McCabe v Voorhis, 243 NY 401 (1926) (Court of Appeals on representative government and referendum requirements).
• 1985 Op Atty Gen (Inf) 57; 1978 Op Atty Gen (Inf) 287 (prior AG opinions on State authorization for referenda).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-36_pw.pdf

Original opinion text

VILLAGE LAW §§ 8-800, 9-902, 9-908.
A referendum on whether to abolish a village police
department is permissive, and can be called for or authorized
only after enactment of a local law by the board of trustees to
abolish the police department. If a referendum is held and the
voters approve the proposition to abolish the police department,
the abolition will become effective under the terms of the local
law. If the proposition is defeated, the police department will
be retained. If the permissive referendum is not called for or
authorized, the local law will take effect without voter approval
and the police department will be abolished.
September 3, 1998

Kevin M. Gilligan, Esq.
Village Attorney
Village of Solvay
Salina Place
205 South Salina Street
Syracuse, New York 13202-1307

Informal Opinion
No. 98-36

Dear Mr. Gilligan:
You have asked whether a proposal to abolish a village
police department may be placed before the voters for approval
and, if so, you have inquired as to the mechanism for authorizing
such a referendum.
It has long been established in this State that a referendum
can only be conducted by a municipality when specifically
authorized by the State Legislature. 1985 Op Atty Gen (Inf) 57;
1978 Op Atty Gen (Inf) 287; copies enclosed. "Government by
representation is still the rule. Direct action by the people is
the exception." Mills v Sweeney, 219 NY 213 (1916); Browne v
City of New York, 241 NY 96 (1925); Matter of McCabe v Voorhis,
243 NY 401 (1926).
The State Legislature has chosen to make abolition of a
village police department subject to permissive referendum.
Section 8-800 of the Village Law establishes the procedure for
the abolishment of a village police department. Under section
8-800, the village board of trustees must first enact a local
law, subject to permissive referendum, to abolish the department.
Thereafter, the local law may be, but does not have to be, made
subject to voter approval. Under the procedures specified in
Article 9 of the Village Law on permissive referenda, a
referendum will be required (a) upon the filing of a petition
requesting a vote on the local law by a requisite number of
village electors, or (b) upon authorization of a referendum by
the board of trustees. Village Law §§ 8-800, 9-902, 9-908. In
either event, a proposition to approve the local law must be
submitted at the referendum. Id. If neither the requisite
number of village electors nor the board of trustees calls for a
referendum, the local law will take effect 30 days after its
adoption, without voter approval. Id., § 9-902(1).
Therefore, the board of trustees first must enact a local
law providing for abolition of the police department. A
proposition to approve the local law will be submitted to the
voters if a petition requesting a referendum is filed or if the
trustees call for a referendum. If a referendum is held and the
voters approve the proposition to abolish the police department,
the abolition will become effective under the terms of the local
law. Defeat of the proposition will serve to retain the police
department. If a referendum is not called for or authorized, the
local law will take effect and the police department will be
abolished. Id., § 9-902(1).
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