Can a New York town extend its supervisor's term from two years to four when that supervisor also sits on the county board of supervisors?

Plain-English summary

Warren County is one of the New York counties (formerly several) that uses the "board of supervisors" system. The town supervisors of each town in the county also sit on the county's legislative body. The county attorney asked whether a town could extend the supervisor's term from two years to four where the supervisor also serves as a member of the county board.

The AG said the town can do this, but only one way: by resolution of the town board subject to a mandatory referendum under Town Law § 24-a. Local law will not work.

The reason a local law fails. Municipal Home Rule Law § 10(1)(ii)(a)(1) gives towns broad authority to legislate on the powers, duties, and terms of office of their own officers, but it expressly carves out members of the county legislative body acting as county officers. A town supervisor who doubles as a county board member is partially a county officer, and a local law altering his term necessarily touches that county-officer capacity. A 1975 AG opinion and DiPaola v Meisser, 28 A.D.2d 1090 (2d Dept), affd, 20 N.Y.2d 866 (1967), confirm that limitation.

Why § 24-a works. Chapter 230 of the Laws of 1981 amended Town Law § 24-a to allow any town board to adopt a resolution providing that the term of each elected town official thereafter elected shall be four years. The resolution is subject to mandatory referendum. The legislative history makes the purpose explicit: the 1981 amendment was crafted to overcome the Municipal Home Rule Law restriction identified in the 1975 AG opinion. It is an exercise of the Legislature's own home-rule authority under NY Const, Art IX, § 2(b)(3) to confer additional powers on local governments.

The opinion notes that Kerner v Town of Clifton Park, 178 Misc 2d 845 (Sup Ct, Saratoga Co. 1998), reaches the same conclusion: a town cannot extend the supervisor's term by local law where the supervisor is on the county board, but may do so by resolution under Town Law § 24-a.

Currency note

This opinion was issued in 2000. 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 dual capacity (town supervisor and county board member) matter?

Because Municipal Home Rule Law § 10(1)(ii)(a)(1) lets a town legislate on its own officers but specifically excludes the county capacity. A town supervisor who also sits on the county board occupies two roles simultaneously. Lengthening the term affects both roles, and the carve-out blocks the town from doing that by local law.

Why is the resolution subject to mandatory referendum?

Town Law § 24-a expressly requires it. The Legislature decided that a change to the term of every elected town official is significant enough to require voter approval. The mandatory referendum gives the voters direct say without a discretionary call by the town board on whether to put it to a vote.

Does the four-year term take effect immediately?

No. § 24-a applies the new term to elected town officials "thereafter elected." Incumbents serve out their existing two-year terms; the four-year term applies to elections held after the referendum approving the change.

Could the town shorten the term back to two years later?

The opinion does not address rollback. § 24-a authorizes the resolution-plus-referendum mechanism for moving to four years. A reversal would presumably require the same mechanism, with the issue depending on the specific language of § 24-a as it stood at the time of any rollback effort.

What about counties that use a county legislature rather than a board of supervisors?

This opinion is specific to counties where the town supervisor automatically sits on the county legislative body. In counties with a county legislature elected separately, the town supervisor is not also a county officer, and the Municipal Home Rule Law restriction does not apply. A local law route may be available in those counties for term changes, subject to other procedural requirements.

Background and statutory framework

Municipal Home Rule Law § 10. This is the general home-rule grant. Subdivision (1)(ii)(a)(1) authorizes towns and cities to adopt local laws on the powers, duties, and terms of office of their officers and employees, expressly excluding members of the county legislative body acting in their county-officer capacity.

Town Law § 24-a. As amended by Chapter 230 of the Laws of 1981, this provision allows a town board, by resolution subject to mandatory referendum, to set a four-year term for elected town officials. The 1981 amendment was a targeted legislative fix to allow towns whose supervisors sit on county boards to lengthen the supervisor's term without running into the Municipal Home Rule Law's carve-out.

Constitutional grant. NY Const, Art IX, § 2(b)(3) lets the Legislature confer additional powers on local governments. Town Law § 24-a is an exercise of that authority.

Case law. DiPaola v Meisser upheld the limit on local-law authority where a county-officer capacity was involved. Kerner v Town of Clifton Park applied the same rule and confirmed the § 24-a alternative.

Citations

• Municipal Home Rule Law § 10(1)(ii)(a)(1) (home-rule authority over town officers, carve-out for county capacity).
• Town Law § 24-a (resolution subject to mandatory referendum to extend term to four years).
• L 1981, Ch 230 (1981 amendment to § 24-a).
• NY Const, Art IX, § 2(b)(3) (Legislature may confer additional powers on local governments).
• DiPaola v Meisser, 28 A.D.2d 1090 (2d Dept), affd, 20 N.Y.2d 866 (1967) (limit on local-law authority over county-capacity officers).
• Kerner v Town of Clifton Park, 178 Misc 2d 845 (Sup Ct, Saratoga Co. 1998) (local law cannot extend term, § 24-a resolution may).
• 1975 Op Atty Gen (Inf) 223 (earlier AG opinion on the Municipal Home Rule Law carve-out).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2000-6_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Page 1 of 2

Opn. No. 2000-6
MUNICIPAL HOME RULE LAW § 10(1)(ii)(a)(1); TOWN LAW § 24-a; L1981, CH 230.
Under section 24-a of the Town Law a town may, by resolution subject to mandatory referendum,
increase the term of town supervisor from two to four years even where the supervisor serves as a
member of the county board of supervisors.
May 23, 2000
Paul B. Dusek, Esq.
County Attorney
County of Warren
Warren County Municipal Center
1340 State Route 9
Lake George, NY 12845-9803

Informal Opinion
No. 2000-6

Dear Mr. Dusek:
You have asked whether a town may enact a local law which increases the term of the town
supervisor from two to four years in a county in which the town supervisor, by reason of this title, also
serves as a member of the county board of supervisors, the legislative body of the county. We conclude
that while the town in such circumstances may not enact a local law increasing the town supervisor's
term, it may increase the term by resolution subject to mandatory referendum.
It is clear that the town may not act in such a manner by local law. The Municipal Home Rule
Law authorizes local governments to adopt and amend local laws, consistent with the Constitution and
with general State laws, in relation to:
The powers, duties, qualifications, number, mode of selection and removal, terms of office,
compensation, hours of work, protection, welfare and safety of its officers and employees
except that cities and towns shall not have such power with respect to members of the
legislative body of the county in their capacities as county officers. Municipal Home Rule
Law §10(1)(ii)(a)(1) (emphasis supplied).
Under this provision, we have previously concluded that the term of a town supervisor who also serves
as a member of the county board of supervisors may not be increased. See 1975 OpAttyGen (Inf) 223);
see also DiPaola v Meisser, 28 A.D.2d 1090 (2dDep't), aff'd, 20 N.Y.2d 866 (1967).
It seems clear, however, that a town may increase the term of town supervisor from two to four
years under a 1981 amendment to section 24-a of the Town Law. Under that provision, "the town board
of any town may adopt a resolution to provide that the term of office of each and any elected town
official thereafter elected shall be four years." The resolution is subject to mandatory referendum. The
purpose of the 1981 amendment to section 24-a was to permit towns to overcome the restriction in
section 10 of the Municipal Home Rule Law noted in our 1975 opinion. See June 8, 1981 Memorandum
from William K. Sanford, Executive Secretary, Association of Towns of the State of New York to
Governor Hugh L. Carey, regarding Senate 4181-A (enacted as ch 230 of the Laws of 1981);
Memorandum by Assemblymen McCabe and Kennedy regarding Assembly 5651-a (stating that the

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4/20/2006

OPINIONS OF THE ATTORNEY GENERAL

Page 2 of 2

legislation was intended to permit an increase in the term of a town supervisor in a county with a board
of supervisors).
Thus, under section 24-a of the Town Law, any town may, by resolution subject to a referendum,
increase the term of its supervisor from two to four years. Section 24-a is an exercise of power by the
Legislature pursuant to the home rule article of the Constitution, under which it may confer additional
powers on local governments. See NY Const., Art. IX, §2(b)(3).
In questioning the authority to increase the town supervisor's term, you cited Kerner v Town of
Clifton Park, 178 Misc. 2d 845 (Sup. Ct. Saratoga Co. 1998). Kerner, however, is consistent with this
opinion. It holds only that the term of a town supervisor who serves on the county board of supervisors
may not be increased from two to four years by local law, while noting that such action may be taken by
resolution under the provisions of the Town Law.
We conclude that under section 24-a of the Town Law a town may, by resolution subject to
mandatory referendum, increase the term of town supervisor from two to four years even where the
supervisor serves as a member of the county board of supervisors.
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 Solicitor General
In Charge of Opinions

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