Can a New York town that is in an elected-legislature county switch the town supervisor from a 2-year term to a 4-year term by local law instead of by the slower Town Law § 24-a resolution route?

Plain-English summary

The Town of Carmel in Putnam County wanted to change its town supervisor from a 2-year term to a 4-year term. The slow Town Law § 24-a path takes years: a resolution has to come at least 150 days before a biennial town election (held in November of odd-numbered years), then the proposition goes to voters at that biennial election, and if approved the next election is for the longer term. The earliest a four-year term could begin via § 24-a was January 2012. The Town wanted to know if a Municipal Home Rule Law local law could move faster.

Yes, in an elected-legislature county. The AG explained that two New York county-governance models matter for this question:

• County Law § 150 model. The county is governed by a board of supervisors composed of the supervisors of the towns and cities. In this model, the town supervisor is also a county legislator, which limits MHRL flexibility.
• County Law § 150-a model. The county is governed by an elected county legislature with its own legislators. Town supervisors are not county legislators. Putnam County uses this model.

In an elected-legislature county like Putnam, Municipal Home Rule Law § 10(1)(ii)(a)(1) lets a town regulate by local law the terms of office of its officers and employees, so long as the local law is consistent with the state constitution and general state law. The local law can supersede Town Law § 24 (the 2-year default) under MHRL § 10(1)(ii)(d)(3), which authorizes towns to supersede Town Law provisions that fall within the home-rule subject matter.

The AG noted that this conclusion was already in 1975 Op. Att'y Gen. (Inf.) 223 and that no relevant statutes had changed in the interim.

Timing the November 2008 referendum. Changing the term by local law triggers a mandatory referendum under MHRL § 23(2)(e). MHRL § 23(1) requires the referendum at a general election held at least 60 days after the local law is adopted. To put it on the November 4, 2008 ballot, the Town had to adopt the local law at least 60 days before that date.

What happens after approval.

• The change applies to elections held after passage.
• The next election for town officers is the November 2009 biennial election. Town Law § 80.
• The four-year term begins January 1, 2010. Town Law § 24.
• The change does not affect the sitting supervisor's existing 2-year term, which the voters chose. The AG cited 1973 Op. Att'y Gen. (Inf.) 103 (local law extending mayor's term did not extend incumbent's term) and Op. Att'y Gen. (Inf.) No. 82-14 (fire chief term extension did not extend incumbent's term) for the rule that statutory or local-law term changes operate prospectively.

Drafting note. MHRL § 22(1) requires the local law to identify the statute being superseded (Town Law § 24) and to include the necessary recital language. Standard drafting practice for supersession local laws.

Currency note

This opinion was issued in 2008. 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

Can a town in a § 150 county (board of supervisors model) also lengthen the supervisor's term?
The AG's analysis assumes a § 150-a (elected legislature) county. In a § 150 county, the town supervisor doubles as a county legislator, and Municipal Home Rule Law's local-law authority over town officer terms is more constrained because the position is also a county office. The standard path in those counties is § 24-a.

Does the same path work for other town officers (clerk, council members)?
The MHRL § 10(1)(ii)(a)(1) home-rule authority covers terms of office of town officers and employees generally, not just the supervisor. The same supersession framework should work for changing other elected officers' terms, with the same mandatory-referendum requirement.

Why can't the local law extend the sitting supervisor's term?
The opinion cites two AG precedents on this. The underlying principle: voters elected an incumbent to a specific term, and a later legislative act cannot retroactively extend that selection without separate voter approval of the extension itself. Term changes operate prospectively from the next election.

What if the referendum fails?
The change does not happen. The local law's effectiveness is conditional on majority voter approval at the referendum. The Town would have to wait and try again, or pursue the § 24-a resolution path.

Is 60 days a hard floor?
Yes, under MHRL § 23(1) the referendum has to be at a general election at least 60 days after adoption of the local law. Adopt earlier; pass the 60-day window; the referendum is valid.

Background and statutory framework

County governance models. County Law § 150 (board of supervisors model, where town supervisors are county legislators). County Law § 150-a (elected county legislature model, where the county has its own elected legislators).

Town supervisor terms. Town Law § 24 sets the default 2-year term. Town Law § 24-a provides the resolution-based path to extend it to 4 years (5-year process described above). Town Law § 80 sets biennial elections in November of odd-numbered years; terms begin January 1.

Municipal Home Rule Law. § 10 grants local-law authority. § 10(1)(ii)(a)(1) covers terms of office. § 10(1)(ii)(d)(3) authorizes supersession of Town Law provisions on home-rule subjects. § 22(1) requires recital of the statute being superseded. § 23(1) requires referendum at general election at least 60 days after adoption. § 23(2)(e) makes term-of-office changes subject to mandatory referendum.

Prior AG opinions. 1975 Op. Att'y Gen. (Inf.) 223 (towns in elected-legislature counties may change supervisor term by local law); 1973 Op. Att'y Gen. (Inf.) 103 (term changes do not extend incumbent); Op. Att'y Gen. (Inf.) No. 82-14 (same for fire chief).

Citations

• County Law § 150 (board of supervisors model); § 150-a (elected county legislature model).
• Town Law § 24 (2-year default supervisor term); § 24-a (resolution-based extension procedure); § 80 (biennial elections in odd-numbered years).
• Municipal Home Rule Law § 10 (local-law authority); § 10(1)(ii)(a)(1) (terms of office); § 10(1)(ii)(d)(3) (supersession of Town Law); § 22(1) (recital of superseded statute); § 23(1) (referendum at general election, 60-day minimum); § 23(2)(e) (mandatory referendum for term changes).
• 1975 Op. Att'y Gen. (Inf.) 223 (term-by-local-law allowed in elected-legislature counties).
• 1973 Op. Att'y Gen. (Inf.) 103 (term extension does not extend incumbent's mayoral term).
• Op. Att'y Gen. (Inf.) No. 82-14 (fire chief term).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2008-8_pw.pdf

Original opinion text

County Law §§ 150, 150-a; Town Law §§ 24, 24-a, 80; Municipal Home
Rule Law §§ 10, 10(1)(ii)(a)(1), 10(1)(ii)(d)(3), 22(1), 23(1),
23(2)(e)

A town may increase the term of the town supervisor who does not serve on the county board of supervisors by local law.

July 30, 2008

Gregory L. Folchetti
Town Counsel
Town of Carmel
Costello & Folchetti, LLP
1875 Route Six
P.O. Box 1200
Carmel, New York 10512

Informal Opinion
No. 2008-8

Dear Mr. Folchetti:

You have requested an opinion regarding whether the Town may, by local law, increase the term of the town supervisor from two to four years. If so, you ask whether the referendum required to pass such a local law may be held at the general election in November 2008 and, if it passes, whether the new four-year term would take effect for the 2009 biennial election, with the term of office commencing January 1, 2010.

You have explained that the Town is located in Putnam County, a county that is governed by an elected county legislature, as provided in County Law § 150-a, rather than by a county board of supervisors comprised of the supervisors of the towns and cities within the county, as provided in County Law § 150.

You recognize that Town Law § 24-a provides a procedure whereby the town board, by resolution, may increase the supervisor's term to four years. Because of the length of time that such a process would involve, you ask whether the Town may alternatively pursue the term change by local law, to expedite the effective date of such a change.

As explained below, we conclude that, in these circumstances, the Town may increase the term of the town supervisor by local law. We further conclude that the referendum needed to enact such a local law may be held at the November 2008 general election, that the election to fill the office would be held at the 2009 biennial election, and the four-year term of office of the person elected would commence January 1, 2010, which is two years earlier than such a term could commence if the change were effectuated by town resolution.

The authority to make this change by local law is provided by Municipal Home Rule Law § 10(1)(ii)(a)(1). That section provides that local governments, including towns, are authorized to enact local laws regulating the terms of office of their officers and employees so long as those laws are consistent with the Constitution and general state law. The section does not apply to towns whose officers are members of the legislative body of the county, but towns in Putnam County do not meet that description, because as previously noted Putnam County is governed by an elected legislature rather than by a board consisting of the supervisors of the towns and cities within the county.

We have previously concluded that towns in a county governed by a legislative body whose members are elected to that position (and do not become members of that body by virtue of having been elected to some other office, such as town supervisor), may change the town supervisor's term by local law. See 1975 Op. Att'y. Gen. (Inf.) 223. There have been no relevant changes to the applicable statutes since we rendered that opinion, and we adhere to that conclusion.

In order to change the supervisor's term pursuant to the Municipal Home Rule Law, a town must adopt a local law superseding Town Law § 24, which provides for a two-year term. Such supersession is expressly authorized by Municipal Home Rule Law § 10(1)(ii)(d)(3), which provides that a town generally may amend or supersede in its application to the town any provision of the Town Law relating to matters that may be the subject of a local law under the authority of Municipal Home Rule Law § 10. As discussed above, provisions relating to the terms of town officers may be the subject of a local law. Municipal Home Rule Law § 10(1)(ii)(a)(1).

If the Town adopts a local law changing the supervisor's term, such a law must be submitted to the voters in a mandatory referendum, Municipal Home Rule Law § 23(2)(e), at a general election held not less than 60 days after the adoption of the local law. Id. § 23(1). Therefore, in order to submit such a law to the voters at the November 4, 2008 general election, the Town must adopt the law at least sixty days before that date.

The proposed change in term will become effective only if approved by a majority of the voters at the election. Id. If approved, the change in term will apply to elections occurring thereafter, beginning with the 2009 biennial election, the next election at which town officers may be elected. Town Law § 80. Any change will not affect the term of the sitting town supervisor, who was selected by the town electors to serve a two-year term. See 1973 Op. Att'y Gen. (Inf.) 103 (local law to increase term of mayor from two to four years did not extend term of incumbent); see also Op. Att'y Gen. (Inf.) No. 82-14 (fire company bylaws amended to increase term of fire chief do not extend term of elected incumbent).

We note that if the Town chooses to proceed in this fashion to increase the supervisor's term by a local law that supersedes Town Law § 24, Municipal Home Rule Law § 22(1) requires that the town board include in the local law certain information relating to the statute being superseded.

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,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions

By:
KATHLEEN M. ARNOLD
Assistant Solicitor General