During a local emergency, can a New York town supervisor close a county road inside town limits and order the county's ambulance dispatcher to switch ambulance companies?

Plain-English summary

The Town of Wappinger and Dutchess County had clashed twice over the scope of the town supervisor's emergency authority. First, a tanker truck overturned on a county road that ran through the town and spilled 12,000 gallons of gasoline. The town supervisor declared a local state of emergency and closed a stretch of the road. The county objected because the road is county property. Second, residents complained that the town's contracted ambulance company was responding too slowly to 911 calls. The town supervisor declared an emergency and tried to direct the county's emergency-dispatch unit to send ambulances from a different company. When the county pushed back, the supervisor reissued the orders to "authorize" rather than "direct." The town attorney wrote in to head off the next dispute.

The AG split the questions. On the road closure, the supervisor was within his authority. Article 2-B of the Executive Law gives a town supervisor, as chief executive of the town, the power to declare a local state of emergency anywhere within the town's territorial limits. Section 24 does not distinguish by ownership of the affected property. A 1980 AG opinion had already concluded that a chief executive could declare an emergency over state-owned property inside the locality, and the same logic applies to county-owned property. The supervisor can also issue emergency orders affecting that property, including closing roads to traffic.

On the ambulance dispatch, the supervisor was out of bounds. Section 25(1) of the Executive Law authorizes the chief executive to use the resources "of his political subdivision" to cope with an emergency. The town's resources, yes; the county's, no. Section 25(3) lets the chief executive "request and accept" assistance from other political subdivisions on terms mutually agreed by the chief executives of both. The specific grant of authority to "request and accept" voluntary aid implicitly forecloses any unilateral commandeering power. Section 25(4) lets the assisting municipality set conditions to protect its own interests. The point, as the AG explained, is that an emergency is no time for confused or contested chains of authority; Article 2-B prefers clear lines and coordinated mutual aid, not commandeering.

Currency note

This opinion was issued in 2005. 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.

Article 2-B has been amended several times since 2005, particularly in the wake of major events like Superstorm Sandy and the COVID-19 pandemic. Local emergency plans, mutual-aid agreements, and the role of the county emergency management coordinator may now address scenarios like these by inter-municipal compact. Any town considering a similar emergency action today should check Executive Law art. 2-B as currently in force, the county's adopted comprehensive emergency management plan, and any specific mutual-aid agreements in place.

Common questions

Q: Who has authority to declare a local state of emergency in New York?
A: Under Executive Law § 24, the "chief executive" of a county, city, town, or village may proclaim a local state of emergency upon finding the public safety is imperiled. For a town, the chief executive is the town supervisor, per Executive Law § 20(2)(f)(4).

Q: What conditions trigger the power to declare?
A: A "disaster, rioting, catastrophe, or similar public emergency" within the territorial limits of the local government, or "reasonable apprehension of immediate danger" of one, plus a finding by the chief executive that the public safety is at risk. "Disaster" is defined broadly in Executive Law § 20(2)(a) to include fire, flood, hazardous materials releases, infrastructure failure, and many other natural and man-made events.

Q: Can a town close a county road during a local emergency?
A: At the time of this opinion, yes. The AG concluded the town supervisor could close a portion of a county-owned road that ran through the town because Executive Law § 24 makes no distinction based on who owns the property; what matters is that the property lies within the town's territorial boundaries.

Q: Can a town supervisor order around county personnel or equipment?
A: No. Executive Law § 25(1) limits the supervisor's authority over resources to the resources "of his political subdivision," i.e., the town's own equipment, personnel, and supplies. To use another government's resources, the supervisor must "request and accept" assistance under § 25(3), and the other government's chief executive controls whether and on what terms to provide it.

Q: Why does the law require mutual agreement instead of letting one chief executive commandeer?
A: The AG explained the practical reason: "If municipal chief executives could commandeer the resources of neighboring localities or the county, those resources might quickly find themselves subject to conflicting orders and claims, particularly if the emergency spans multiple jurisdictions." Article 2-B was built around clear chains of command and coordinated mutual aid, not unilateral commandeering.

Q: What if the emergency genuinely needs county resources right away?
A: Section 25(3) and (4) anticipate that. The chief executive of the affected municipality requests help; the chief executive of the providing municipality decides on terms. Most counties also have a comprehensive emergency management plan under Executive Law § 23 and a county-coordinated mutual-aid framework under § 26 that pre-authorize specific kinds of assistance, so the request and approval don't have to happen from scratch in a crisis.

Q: What about contracts that already exist between the town and the county for emergency dispatch?
A: The AG opinion noted up front that any existing contract or agreement between the town and the county "may vary the general principles" the AG was discussing. If the town's contract with the county dispatch unit gave the town specific rights or escalation procedures, those would govern.

Background and statutory framework

Article 2-B of the Executive Law is New York's framework for state and local emergency management. It assigns specific functions to specific levels of government. The state-level provisions cover the Governor's authority. The local provisions (sections 22 through 28) cover the chief executives of counties, cities, towns, and villages.

The chief executive's core emergency authority is in two places. Section 24 lets the chief executive proclaim a local state of emergency and issue local emergency orders to "protect life and property or to bring the emergency situation under control." The illustrative powers in § 24(1) include controlling pedestrian and vehicle traffic, controlling the presence of persons on public streets, and similar police-power tools. Section 25 lets the chief executive use the resources of the political subdivision to cope with the emergency.

The inter-municipal piece is in § 25(3) and (4). Section 25(3) authorizes the chief executive to request aid from any other political subdivision and to accept it on terms mutually agreed by both chief executives. Section 25(4) lets the assisting subdivision's chief executive set conditions "as he may deem necessary to promote the public welfare and protect the interests of such political subdivision." The structure assumes voluntary mutual aid, not unilateral conscription.

The county-level coordination role is in § 26 and § 23. Section 26(2) creates a county-coordinated assistance mechanism. Section 23 requires each county and city to prepare a disaster preparedness plan, including the local mutual-aid relationships that will be triggered when an emergency occurs.

The 1980 AG opinion (1980 Op. Att'y Gen. 19) on which the AG relied for the property-ownership analysis had reached the same answer for state-owned property: a local chief executive may declare a state of emergency over state-owned property within the local government's boundaries. The same opinion noted that the chief executive could only use a school district's buses in an emergency if the school district agreed. The 1979 AG opinion (1979 Op. Att'y Gen. 21) addressed the parallel concurrent-jurisdiction issue: when both county and town are within the area affected by an emergency, each chief executive has independent authority to declare an emergency without the other's prior concurrence.

Citations and references

Statutes:

• Executive Law art. 2-B (state and local emergency management framework)
• Executive Law § 20(2)(a) (definition of "disaster")
• Executive Law § 20(2)(f)(4) (town supervisor as chief executive of the town)
• Executive Law § 23 (local disaster preparedness plans)
• Executive Law § 23(4), (7)(b)(1), (b)(4) (plan requirements)
• Executive Law § 24 (proclamation of local state of emergency)
• Executive Law § 24(1) (emergency orders; illustrative powers)
• Executive Law § 25(1) (use of the chief executive's political subdivision's resources)
• Executive Law § 25(3) (request-and-accept aid from another subdivision)
• Executive Law § 25(4) (assisting subdivision's right to set conditions)
• Executive Law § 26 (county-coordinated assistance)
• Executive Law § 26(2)

Prior AG opinions:

• 1980 Op. Att'y Gen. 19 (emergency declaration over state-owned property; school-bus use requires district consent)
• 1979 Op. Att'y Gen. 21 (county and political subdivision each have independent authority to declare emergency)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2005-5_pw.pdf

Original opinion text

EXECUTIVE LAW ART. 2-B, §§ 20(2)(a) and (f)(4), 23(4) and (7)(b)(1), (b)(4), 24, 25, 26.

A town supervisor may declare a state of emergency over and promulgate orders with respect to property owned by another municipality that lies within the town's boundaries, but may not direct the use of the resources of another municipality without that municipality's consent.

February 11, 2005

Albert P. Roberts
Town Attorney
Town of Wappinger
1136 Route 9
Wappingers Falls, NY 12590

Informal Opinion
No. 2005-5

Dear Mr. Roberts:

You have requested an opinion about the authority of a town supervisor under emergency conditions. Your request arises because of two recent situations involving the Town of Wappinger and Dutchess County, within which the Town is located.

One situation concerned the Town Supervisor's issuing an emergency order closing a portion of a county road because of a gasoline spill. A gas truck overturned on a county road that passes through the Town of Wappinger and discharged 12,000 gallons of gasoline. The Town Supervisor declared a state of emergency and issued an executive order closing a portion of the road, part of which was located within the Town. Dutchess County officials objected to the closure.

The other situation concerned the Dutchess County Department of Emergency Response, which dispatches ambulances to the Town of Wappinger in response to 911 calls. Local fire officers and residents of the Town had complained that the ambulance company with which the Town had contracted was not responding promptly to emergencies. The Town Supervisor therefore declared a state of emergency and issued executive orders "direct[ing]" the Dutchess County Department of Emergency Response to dispatch ambulances from another company if the primary company did not dispatch one within five minutes of a reported incident. When the County objected to the order, the Town Supervisor issued new orders "authoriz[ing]" the County to dispatch other ambulances.

These situations raise two similar but distinct questions. The first is whether the Town Supervisor may declare a state of emergency over, and issue orders with respect to, property owned by another municipality. The second is whether the Town Supervisor may, under a declared state of emergency, direct the use of the resources of another municipality. You have requested this opinion in anticipation of future emergency situations rather than as an evaluation of the Town Supervisor's past acts. You have not asked whether the Town Supervisor properly declared states of emergency in these situations, and we offer no opinion on the matter. We also do not consider any agreement between the Town of Wappinger and Dutchess County with respect to the emergency dispatch system. The terms of this agreement may vary the general principles that we discuss in this opinion.

Analysis

The emergency powers of a town supervisor, as the chief executive of the town, see Executive Law § 20(2)(f)(4), are set forth in Article 2-B of the Executive Law. The Legislature has authorized the declaration of a local state of emergency under limited circumstances, upon an appropriate finding by the town supervisor. Section 24 of the Executive Law provides that

[n]otwithstanding any inconsistent provision of law, general or special, in the event of a disaster, rioting, catastrophe, or similar public emergency within the territorial limits of any county, city, town or village, or in the event of reasonable apprehension of immediate danger thereof, and upon a finding by the chief executive thereof that the public safety is imperiled thereby, such chief executive may proclaim a local state of emergency within any part or all of the territorial limits of such local government . . . . Following such proclamation and during the continuance of such local state of emergency, the chief executive may promulgate local emergency orders to protect life and property or to bring the emergency situation under control. As illustration, such orders may, within any part or all of the territorial limits of such local government, provide for:

a. . . . the prohibition and control of pedestrian and vehicular traffic, except essential emergency vehicles and personnel . . .
e. the prohibition and control of the presence of persons on public streets and places . . . .

Id. § 24(1). A "disaster" is defined as the "occurrence or imminent threat of wide spread or severe damage, injury, or loss of life or property resulting from any natural or man-made causes, including, but not limited to, fire, flood, earthquake, hurricane, tornado, high water, landslide, mudslide, wind, storm, wave action, volcanic activity, epidemic, air contamination, blight, drought, infestation, explosion, radiological accident, water contamination, bridge failure or bridge collapse." Executive Law § 20(2)(a).

We have previously concluded that the chief executive of a county, city, town or village may proclaim a state of emergency with respect to State-owned property within the territorial limits of that local government. See 1980 Op. Att'y Gen. 19. Our reasoning was that section 24 makes no distinction by virtue of the ownership of property: "As long as the property is within the territorial limits of the locality . . . the local chief executive may declare a state of emergency." Id. By the same reasoning, the Town Supervisor could declare a local state of emergency over property owned by another municipality, as long as it was within the Town's boundaries.

Concomitant with the Town Supervisor's ability to declare a local state of emergency within the boundaries of his town is the power to promulgate emergency orders with respect to property within those boundaries. Executive Law § 24(1). Again, section 24 makes no distinctions based on ownership of property within the municipality's boundaries: "[S]uch orders may, within any part or all of the territorial limits of such local government, provide for . . . ." Id. Therefore, the Town Supervisor may, under a declared local state of emergency, promulgate orders with respect to property owned by another municipality that lies within the Town's boundaries.

The Town Supervisor may not, however, direct the use of the resources of another municipality in an emergency without that municipality's consent. The Town Supervisor is authorized to use "any and all facilities, equipment, supplies, personnel and other resources of his political subdivision" to cope with an emergency. Id. § 25(1) (emphasis added). With respect to other municipalities, the Town Supervisor is empowered only to "request and accept" assistance from any other political subdivision "on such terms and conditions as may be mutually agreed to by the chief executives of the requesting and assisting political subdivisions." Id. § 25(3). The specific grant of authority to "request and accept" voluntary assistance precludes reading the statute to allow a town supervisor to direct the use of the resources of another political subdivision without that municipality's consent. See 1980 Op. Att'y Gen. 19 (chief executive of municipality may use buses owned by school district to cope with emergency only if school district agrees). The chief executives of other municipalities, while perhaps willing to assist the municipality that is in a state of emergency, have obligations to their own communities. Thus, the chief executive of the assisting municipality, upon the receipt of a request for aid, may provide resources "on such terms and conditions as he may deem necessary to promote the public welfare and protect the interests" of his municipality. Id. § 25(4).

Any other rule runs the risk of creating chaos. If municipal chief executives could commandeer the resources of neighboring localities or the county, those resources might quickly find themselves subject to conflicting orders and claims, particularly if the emergency spans multiple jurisdictions. Cf. 1979 Op. Att'y Gen. 21 (chief executives of county and political subdivision within county each have independent authority to declare emergency without other jurisdiction's prior concurrence). In a state of emergency, however, it is of the utmost importance that the lines of authority be clear and undisputed. Article 2-B signals a strong preference for using existing lines of authority to coordinate emergency responses. See, e.g., Executive Law § 23(4) and (7)(b)(1) and (4) (local disaster-preparedness plans); id. § 26(2)(county-coordinated assistance). This minimizes the risk of bureaucratic confusion and conflict during an emergency situation.

For the reasons discussed above, we conclude that the Town Supervisor may declare a state of emergency over and promulgate orders with respect to property owned by another municipality that lies within the Town's boundaries, but that he may not direct the use of the resources of another municipality without that municipality's consent. The Town Supervisor may request and accept assistance on terms mutually agreeable to each municipality.

The Attorney General renders 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,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions

By: BENJAMIN N. GUTMAN
Assistant Solicitor General