Informal Opinion No. ( 1988 )

James P. Duffy, III, Esq. Village Attorney, East Williston

You have asked whether the mayor of a village is authorized to instruct the village attorney to initiate prosecutions of alleged violations of village laws or whether he must first obtain a resolution of the village board of trustees authorizing such prosecutions. You have indicated that the mayor believes he has the authority to authorize prosecutions under Village Law, § 4-400 (1) (b) but there is concern that a resolution of the board might be required under Village Law, §20-2006 (2).

Section 4-400 (1) (b) of the Village Law provides that it is the responsibility of the mayor "to provide for the enforcement of all laws, local laws, rules and regulations and to cause all violations thereof to be prosecuted". This appears to be a clear authorization for the mayor to order the village attorney to prosecute these violations.

You are concerned, however, about the effect of section 20-2006 (2) of the Village Law on the authority of the mayor under section 4-400 (1) (b). Section 20-2006 (2) authorizes the board of trustees of a village to grant to a village attorney the responsibility to prosecute violators of village regulations and authorizes reasonable compensation for this service. The attorney must, however, be an assistant district attorney in order to receive the additional compensation (ibid.).

We have found that the purpose of this section is to permit a village to pay the village attorney additional compensation for his work in prosecuting local regulations (1986 Op Atty Gen [Inf] 123; 1977 Op Atty Gen [Inf] 292). In our 1977 opinion, we concluded that the application of section 20-2006 (2) is not needed for a village attorney to legally prosecute violations of village laws. Instead, it is a procedure to be followed should the village's board of trustees desire to pay additional compensation to the village attorney for prosecutorial work above and beyond his regular compensation as village attorney. Thus, we believe that a village attorney must undertake prosecution of persons violating village laws on the authorization of the mayor under section 4-400 (1) (b) of the Village Law. Authorization of the board of trustees is required only if the village attorney is designated an assistant district attorney in accordance with the procedure established by section 20-2006 (2) of the Village Law for purposes of receiving additional compensation (1977 Op Atty Gen [Inf] 292).

We conclude that except where a village attorney is designated as an assistant district attorney for purposes of receiving additional compensation for prosecution of violators of village laws, the mayor is authorized to direct the village attorney to undertake these prosecutions.