Opn. No. ( 1981 )

Kevin J. Duffy, Esq. Town Attorney, Riverhead

You ask whether the supervisor of a town is the administrator of town government.

The town supervisor is the presiding officer at meetings of the town board and may appoint committees of the board to assist in the performance of board duties (Town Law, § 63). The supervisor also acts as treasurer of the town and has various responsibilities in relation to town funds (Town Law, §§ 29, 125).

The town board is the legislative and administrative arm of town government. Unlike cities, villages and charter counties that have independent executive branches, town boards have traditionally performed both legislative and many administrative functions. (See State of New York Department of State, Local Government Handbook [2d Edition, 1976] pp 123-4.)

In suburban towns the supervisor is the chief executive officer of the town and the head of the administrative branch of town government (Town Law, § 52). The eligibility requirements for becoming a suburban town are provided by section 50-a of Article 3-A of the Town Law, referred to as the Suburban Town Law.

We believe that towns other than suburban towns may give their supervisors administrative powers (Municipal Home Rule Law, § 10 [1] [i] or [ii] [a] [1]). This may be done notwithstanding general provisions of the Town Law because towns have been granted the power to supersede the Town Law when enacting local laws within their grant of home-rule power (Municipal Home Rule Law, § 10 [1] [ii] [d] [3]).

A local law is subject to mandatory referendum if it abolishes, transfers or curtails a power of an elective officer (Municipal Home Rule Law, § 23 [2] [f]). The abolition, transfer or curtailment of a power of an elective board is subject to this referendum requirement (McCabe vVooris, 243 N.Y. 401 [1926]; see also Fogarty v Warden, 191 Misc. 916 [Sup Ct, Orange Co., 1948], affd 273 App. Div. 910 [2d Dept, 1948], affd297 N.Y. 963 [1948]). If in granting administrative powers to the supervisor a power of the town board is transferred within the meaning of section 23 (2) (f), the local law effectuating the transfer would be subject to mandatory referendum.

We enclose a copy of our Informal Opinion No. 81-10 for your information. The opinion deals with the establishment of the position of town administrator or manager and includes an analysis of the range of administrative responsibilities that may be granted by local law to an administrator or manager and the applicable referendum requirements. We believe that this analysis is applicable to a proposal to grant administrative powers to the town supervisor.