Requestor: Thomas E. Ramich, Village Attorney Village of Elmira Heights 420 Carroll Street Elmira, New York 14901-3404

Written by: James D. Cole, Assistant Attorney General in Charge of Opinions

You have inquired as to whether the mayor or the village board of trustees has responsibility for appointment of a sergeant in the village police department.

Under section 4-400(1)(c) of the Village Law, the mayor has responsibility "to appoint all department heads and non-elected officers and employees subject to the approval of the board of trustees". The mayor may delegate the power to appoint certain employees to other village officers or employees (Village Law, § 4-400[1][c]). You have indicated that the mayor has never delegated his appointment power.

Article 8 of the Village Law provides for the establishment and organization of a village police department. The board of trustees is given the authority to "establish a police department in such village and appoint a chief of police and such personnel as may be needed, and fix their compensation" (id., § 8-800).

Construing these two provisions, it has been found that the board of trustees, not the mayor, is authorized to appoint a village chief of police (Milhim v Clarke, 140 Misc.2d 1092 [Sup Ct, Nassau Co, 1988]). The court reasoned that under rules of statutory construction, specific provisions of a statute prevail over general provisions and meaning must be given to the plain language of a statute (Milhim, supra, pp 1093-1094). This reasoning applies with equal force to the appointment of other officers and personnel of the police department who are also appointed by the board of trustees under the specific provisions of section 8-800 of the Village Law.

We conclude that the board of trustees, not the mayor, is authorized to appoint a person to the position of sergeant in the village police department.

The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of views of this office.