After the Town of Brookhaven adopted ward-based elections, are council members serving two-year or four-year terms, and does the town's local term-limits law still apply?

Plain-English summary

Brookhaven moved from at-large to ward-based council elections by voter-initiated proposition in January 2002, taking effect with the November 2003 election. The town's lawyer asked the Attorney General two questions: First, did council members now serve two-year terms under Town Law § 85, which governs ward-system terms, or four-year terms under the 1959 special law that made Brookhaven a first-class town? Second, did the town's local term-limits law (Town Code § 20-62, "up to three four-year terms") still apply now that terms had shrunk to two years?

On the first question, the AG concluded that Town Law § 85 controlled. The 1959 act's reference to four-year terms was tied to Brookhaven's reclassification to first-class status (which addressed unique colonial-era trustee positions and the number of council seats), not to the at-large electoral system. The 1959 act explicitly preserved the rest of the Town Law for matters not addressed by the special act. The Suffolk County trial court in D'Addario v. McNab (1973) had already read the two regimes as compatible. Therefore, council members serve two-year terms under § 85.

The second question was harder. New York disfavors implied repeal of local laws. A voter-initiated proposition adopting the ward system did not directly repeal a separately enacted local term-limits law, and the proposition was not in itself a vehicle authorized to repeal term limits. The applicability of the existing three-term limit, the AG said, depended on what the Town Board intended when it enacted the term-limit ordinance: three terms regardless of length, twelve years total, or three four-year terms only while four-year terms applied? Because that was a question of local legislative intent, the AG declined to opine, leaving it for the town attorney and the board to resolve.

Currency note

This opinion was issued in 2004. 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.

Brookhaven's local government structure has continued to evolve, and Town Law § 85, § 81, and related provisions have seen amendments. Anyone with a current question about Brookhaven council member terms or about how local term-limit ordinances interact with a shift in electoral system should review the current statutory text, the current Town Code, and any subsequent appellate decisions.

Common questions

Q: What is the difference between a first-class and second-class town?
A: Town Law § 10 generally classifies towns by population (10,000 or more is first-class), but all Suffolk County towns are second-class regardless of population unless they affirmatively reclassify. First-class towns have a different governance structure, including four council members instead of two.

Q: What does it mean to "adopt the ward system"?
A: Under Town Law §§ 81 and 85, a town can divide itself into wards, with one council member elected from each. Ward-based members serve two-year (not four-year) terms.

Q: Why did Brookhaven need a special act in 1959?
A: Two reasons. Brookhaven had unique colonial-era "Trustees of the Freeholders and Commonalty" whose status had to be addressed during reclassification. And the town had eight justices of the peace serving on the town board under an 1854 special law; the 1959 act repealed that structure, set six council seats, and made the trustees ex officio members of the town board.

Q: Did the AG resolve whether the local term-limits law still applies?
A: No. The AG flagged it as a question of local legislative intent and declined to resolve it, recommending the town attorney work with the board or have the board take legislative action to clarify.

Q: What is "implied repeal"?
A: A doctrine that one statute may impliedly repeal another when the two cannot stand together. New York courts strongly disfavor implied repeal. Local Gov't Assistance Corp. v. Sales Tax Asset Receivable Corp. (2004).

Q: Could the electors repeal a term-limits law by proposition?
A: Not directly. The AG noted that only those propositions specifically authorized by constitutional or statutory authorities are permissible. A voter-initiated proposition on term limits was not separately authorized, so the electors could not directly repeal a term-limits provision.

Background and statutory framework

Brookhaven sits at the intersection of three regimes. First, the general Town Law (§§ 10-12, 20, 24, 81, 85) governs town classification, council size, term lengths, and the ward system. Second, special state legislation (L. 1959, ch. 841) governed Brookhaven's reclassification to first-class status and handled its unique trustee and justice-of-the-peace history. Third, the town's own Code (§ 20-62) imposed a local three-term limit.

The interpretive rule in Statutes § 397 says a special act controls over a general act in case of conflict. The AG read the 1959 act and Town Law § 85 as addressing different subjects (reclassification vs. ward elections), so no conflict actually existed. The 1959 act's saving clause expressly preserved the general Town Law except where the special act provided otherwise. The result is that § 85's two-year terms now govern Brookhaven.

On term limits, the AG applied the disfavored-implied-repeal rule from Local Gov't Assistance Corp. The voter-initiated ward proposition could not, by itself, repeal a term-limits provision; that would require legislative action authorized for that purpose. The question of whether the existing local term-limits law continues to apply under shorter terms is one of local legislative intent.

Citations and references

Statutes and authorities:

• Statutes §§ 391, 392, 397
• Town Law §§ 10, 11(1), 12, 20, 24, 81, 85
• L. 1959, ch. 841 (Brookhaven reclassification act)
• L. 1854, ch. 94 (predecessor structure)

Cases:

• Wells v. Warner, 203 N.Y.S.2d 214 (Sup. Ct. Suffolk County 1960)
• D'Addario v. McNab, 73 Misc. 2d 59 (Sup. Ct. Suffolk County 1973)
• Local Gov't Assistance Corp. v. Sales Tax Asset Receivable Corp., 2 N.Y.3d 524 (2004)
• Roth v. Cuevas, 158 Misc. 2d 238 (Sup. Ct. N.Y. County), aff'd, 192 A.D.2d 369, aff'd for reasons stated, 82 N.Y.2d 791 (1993)
• Metropolitan Multi-Housing Laundry Ass'n v. New York City Dep't of Finance, 184 A.D.2d 759 (2d Dep't 1992)

Prior AG opinions:

• Op. Att'y Gen. (Inf.) No. 95-29; No. 83-10

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2004-12_pw.pdf

Original opinion text

STATUTES §§ 391, 392, 397; TOWN LAW §§ 10, 11(1), 12, 20, 24, 81, 85; L. 1959, CH. 841; L. 1854, CH 94.

Following adoption of the ward system of election, council members in the Town of Brookhaven are subject to the two-year term of office provided for in Town Law § 85. Applicability of a previously-enacted local term limits law to the two-year terms depends on the intent of the town board in enacting that local law.

November 2, 2004

Karen M. Wilutis, Esq.
Town Attorney
Town of Brookhaven
1 Independence Hill
Farmingville, NY 11788

Informal Opinion
No. 2004-12

Dear Ms. Wilutis:

You have asked (1) whether council members in the Town of Brookhaven, which recently adopted the ward system of election, are subject to the two-year term of office provided for in Town Law § 85, or whether they continue to hold four-year terms pursuant to special state legislation enacted in 1959; and (2) what term limits, if any, are applicable to those council members.

We conclude that upon Brookhaven's adoption of the ward system, the term of office of town council members became two years, notwithstanding the reference to four-year terms in the special state law. As to the second question, we believe the applicability of term limits depends upon an interpretation of local law, a task best left to local officials familiar with local conditions and the intent of the local legislative body.

BACKGROUND

At issue here is the interplay between certain provisions of the Town Law and special state legislation enacted in 1959 which authorized the Town of Brookhaven to change its classification from a town of the second class to a town of the first class. See L. 1959, ch. 841, § 1 (hereinafter the "1959 Act"). We therefore describe the relevant statutes before turning to our analysis.

Towns in New York are generally classified as either "first class" or "second class" towns according to whether they have a population of 10,000 or more. See Town Law § 10; see also id. § 11(1) (providing for mandatory reclassification upon population growth). However, certain towns, including all towns in Suffolk County, are defined in the Town Law as towns of the second class regardless of their population. See id. §§ 10, 11(1). Town Law § 12 provides authorization for such towns, if they meet specified criteria, to opt to become first class towns through adoption of a proposition or by town board resolution subject to a permissive referendum. See id. § 12(1). Upon transition to first class status, the number of town council members is increased from two to four. See id. §§ 12(4)(b), 20(1)(a),(b).

Town Law § 24 provides that these council members will serve staggered four-year terms: At the initial election following reclassification, two council members are elected to serve two-year terms and two are elected to serve four-year terms. Thereafter, two members are elected every two years to serve four-year terms. Id. § 24. Once a town is classified as a first class town, it may increase the number of council members to six or decrease the number to two by proposition submitted at a town election. See id. § 81(2)(a),(c); cf. id. § 20(1)(a) ("Every town of the first class shall have . . . four town councilmen, unless the number of councilmen shall have been increased to six or decreased to two as provided by this chapter.").

Other provisions of the Town Law authorize the adoption of the ward system of election by first class towns and govern the terms of office of council members under such a system. See Town Law §§ 81(2)(b), 85. Under the ward system, council members are no longer elected by the town at large to serve four year terms; instead, the town is divided into distinct wards, one for each council member position, and "one resident elector of each ward shall be elected as councilman therefrom for a term of two years." Id. § 85(1) (emphasis added). Thus, when a town adopts the ward system, the staggered four-year terms provided for in Town Law § 24 give way to uniform two-year terms. See id.

Brookhaven became a town of the first class on January 1, 1960. See Wells v. Warner, 203 N.Y.S.2d 214, 216 (Sup. Ct. Suffolk County 1960). It did not carry out the reclassification under Town Law § 12, however, but rather proceeded pursuant to special legislation, the 1959 Act. This legislation was introduced at the unanimous request of Brookhaven's Town Board. As set forth in a memorandum submitted on behalf of the Town in support of the legislation, the special law was necessary for two reasons.

The first reason relates to the status of offices known as the "Trustees of the Freeholders and Commonalty of the Town of Brookhaven," positions provided for in the colonial land grants and patents that established the Town prior to the existence of New York State. After the creation of New York State, the powers of the Trustees were "confined to the control of the common townlands, title to which is vested in them," and although there was some overlapping responsibility between the duties of the Trustees and the Town Board, it was felt that the trustee positions could not be constitutionally eliminated. One purpose of the 1959 Act was therefore to clarify the status and duties of Brookhaven's Trustees upon reclassification to a first class town. The 1959 Act resolved the matter by terminating the terms of the existing Trustees and providing that thereafter the Trustees' offices would be held by the members of the Town Board ex officio. See 1959 Act § 4.

The other reason the 1959 Act was deemed necessary was to ensure that Brookhaven would have the appropriate number of town officers after its reclassification to a first class town. Pursuant to earlier special legislation, Chapter 94 of the Laws of 1854, Brookhaven had eight justices of the peace, who also served by virtue of that position as members of the Town Board. It was the belief of Brookhaven's Town Board in 1959 that if the reclassification proceeded without special legislation, the Town would retain all of the justice positions and would in addition gain four council member positions pursuant to the terms of Town Law § 12. Thus, in order to establish a more appropriate number of town officials, the 1959 Act expressly repealed Chapter 94 of the Laws of 1854, reduced the number of justices of the peace in Brookhaven from eight to four, and established six council member positions instead of four.

The 1959 Act also provided, in language similar to that set forth in Town Law § 24, that council members would serve staggered four-year terms of office:

Upon its determination as herein provided to become a town of the first class, the town of Brookhaven shall elect . . . three town councilmen for terms of four years each and three town councilmen for terms of two years each and thereafter at each biennial election three town councilmen shall be elected for terms of four years.

1959 Act § 2.

Finally, the 1959 Act contained provisions indicating that it was not intended to displace the general Town Law in matters unrelated to Brookhaven's reclassification as a first class town. It expressly provided that "[u]pon becoming a town of the first class the town of Brookhaven shall be subject to all the provisions of the town law except as herein provided." 1959 Act § 3(c).

ANALYSIS

A. Terms of Office

On January 22, 2002, the Town of Brookhaven established the ward system for the election of council members, adopting a proposition to that effect pursuant to Town Law § 81. Your question regarding terms of office for Brookhaven's council members is based upon the apparent conflict between the provision of the 1959 Act that provided for staggered four-year terms upon reclassification to first class status and Town Law § 85(1), which provides for two-year terms upon adoption of the ward system. For the reasons given below, we believe that those two statutes are not in conflict, and therefore conclude that Town Law § 85 is controlling in the present circumstances.

Ordinarily, when a town adopts the ward system, the terms of council members are reduced from the staggered four-year terms provided for in Town Law § 24 to two years pursuant to Town Law § 85. In our view, the four-year terms under the 1959 Act, like those under Town Law § 24, must give way to two-year terms under Town Law § 85 upon adoption of the ward system.

Section 2 of the 1959 Act, like Town Law § 24, addresses terms of office upon first becoming a first class town. It establishes staggered four-year terms by providing for an initial election of three council members for two-year terms and three for four-year terms, with the election of three members for four-year terms at each biennial election thereafter. Nothing in this provision indicates that the four-year terms must remain in place even after subsequent changes to the town's governance structure.

We find nothing else in the 1959 Act that would prevent Town Law § 85 from having its ordinary effect here. As noted, the 1959 Act expressly provides that "the town of Brookhaven shall be subject to all the provisions of the town law except as herein provided." We believe the provision of the 1959 Act providing for four-year terms of office was intended to have the same effect as the substantially similar provision in Town Law § 24: to establish staggered four-year terms upon reclassification to first class status, without precluding the establishment of a different term following adoption of the ward system, if such event occurs.

We think it significant that none of the purposes animating the 1959 Act relates to the ward system of election. The 1959 Act was deemed necessary to account for the Trustees of Brookhaven, an issue unique to that town, and to adjust the number of town officers upon reclassification to first class status. Those purposes are unrelated to the ward system of election, the matter governed by Town Law § 85. In view of the distinct purposes of the relevant statutes, and absent any explicit statement from the Legislature, we do not believe that the 1959 Act was intended to preclude application of Town Law § 85.

Our conclusion that Brookhaven council members serve two-year terms of office pursuant to Town Law § 85 is supported by D'Addario v. McNab, 73 Misc. 2d 59 (Sup. Ct. Suffolk County 1973), a case also involving the interaction of Town Law § 85 and the 1959 Act. There, the plaintiff argued that the original patent establishing the Brookhaven Trustees, together with the 1959 Act, precluded establishment of the ward system in the Town of Brookhaven. Rejecting that argument, the court determined that "[n]othing contained in [the 1959 Act] precludes the Town of Brookhaven from availing itself of the benefits of section 85." Id. at 67.

B. Term Limits

Section 20-62 of the Town Code of the Town of Brookhaven provides: "A Councilman may serve up to three (3) four- (4) year terms regardless of whether said terms are served consecutively or nonconsecutively." The authority of a local government to enact local laws limiting the terms of elected officials has been upheld by judicial decision, see Roth v. Cuevas, 158 Misc. 2d 238 (Sup. Ct. N.Y. County), aff'd, 192 A.D.2d 369 (1st Dep't), aff'd for reasons stated at Supreme Court, 82 N.Y.2d 791 (1993).

Insofar as section 20-62 of Brookhaven's Town Code contemplates four-year terms of office for council members, it is inconsistent with the two-year terms put in place when Brookhaven moved to the ward system. Ordinarily, where one local enactment appears to be inconsistent, at least in part, with prior local legislation, the question arises whether the later provision may have impliedly modified or repealed the earlier one. However, we believe the doctrine of implied repeal has little bearing on the question of the continuing effect, if any, of Brookhaven's term limits provision.

Significantly, "[t]he intent of the Legislature is the controlling factor in determining the question of implied repeal of a statute by a subsequent statute." Here, however, the later enactment, the one establishing the ward system, was enacted not by the local legislature but directly by the electors following submission of a petition. The electors, however, are not empowered directly to repeal Brookhaven's term limits provision, since only propositions and referenda specifically authorized by constitutional or statutory authorities are permissible, and no voter-initiated proposition or referendum on term limits has been authorized. See Op. Att'y Gen. (Inf.) No. 95-29. Because the electors of Brookhaven have no authority to repeal the term limits provision, their intent regarding such repeal, the touchstone of an implied repeal analysis, is immaterial.

Thus, we believe the issue depends upon the local legislative intent in enacting the term limits law. Did the Town Board intend that its members would serve no more than three terms, even if the length of the term was changed by the electorate? Or did the Board intend that its members would serve no more than a total of 12 years? Alternatively, did the Town Board intend the term limits rule to apply only for so long as the council members continued to serve four-year terms?

It is our general policy not to opine on issues that depend upon a determination of local legislative intent, as that task is best left to local officials who are familiar with local conditions and the intent of the local legislative body. Inasmuch as we have concluded that application of the Town's local term limits law under the ward system turns on the intent of the Town Board in enacting the local law, we believe this issue is best determined by your office in consultation with local officials. Of course, the Town Board may, if it chooses, take legislative action to determine whether and how term limits will apply to council members under the ward system.

CONCLUSION

We conclude that the town council members in the Town of Brookhaven serve two-year terms of office pursuant to Town Law § 85 and that the applicability of the pre-existing local term limits law depends upon the intent of the Town Board in enacting that provision.

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,
LAURA ETLINGER
Assistant Solicitor General
In Charge of Opinions

By: _________
GREGORY SILBERT
Assistant Solicitor General