Thomas J. Costello, Esq. County Attorney, Putnam
You informed us that your county desires to make the position of district attorney full time. Your question is whether the county is authorized to adopt a local law superseding section 183-a of the Judiciary Law, which mandates certain salaries for full-time district attorneys.
In Matter of Kelley v McGee, 57 N.Y.2d 522 (1982), the validity of section 183-a of the Judiciary Law was in issue. The argument had been raised that section 183-a is a special law* dealing with the property, affairs and government of counties that was not enacted in accordance with the requirements of Article IX of the Constitution.** While finding that district attorneys are local, not State officers, the Court determined that the subject matter of section 183-a is a matter of state concern. In upholding the statute, the Court found:
"Once a statute is found to involve an appropriate level of state interest, the fact that it effects a classification among the local governments it regulates does not render the enactment invalid, so long as that classification is reasonable and related to the State's purpose." (Id., 57 N.Y.2d 522, 540 [1982].)
A State statute effecting a reasonable classification of local governments and relating to a matter of state concern may not be superseded by local law (ibid.).
We conclude that a county is not authorized to adopt a local law superseding the salary requirements for district attorneys established by section 183-a of the Judiciary Law.
* Defined as a law which in terms and in effect applies to one or more, but not all, counties, counties other than those wholly included within a city, cities, towns or villages (NY Const, Art IX, §3[d][4]).
** The Legislature is empowered to act in relation to the property, affairs and government of any local government only by general law (defined by Art IX, § 3[d][1]) or by special law only after a home-rule request or except in the City of New York on a certificate of necessity from the Governor with the concurrence of two-thirds of the members elected to each house of the Legislature (Art IX, § 2[b][2]).