Opn. No.

HON. BRYAN J. HUGHES Village Attorney, Malone

We acknowledge receipt of your letter inquiring about establishment of the second office of village justice and reduction of salary of the incumbent village justice.

Village justices are elective village officers under Village Law § 3-301, subdivision 3. In our opinion, if the salary of a village justice is to be reduced during his term of office, this can be done only by local law which, under Municipal Home Rule Law § 23, subdivision 2, paragraph e, is subject to a mandatory referendum. We enclose herewith a copy of an informal opinion of the Attorney General dated August 7, 1974, addressed to Hon. Louis Kurtz, Mayor of the Village of Spring Valley, to the same effect.

Village Law § 3-301, subdivision 2, paragraph a, provides, in part:

"The board of trustees of any village by resolution or local law, subject to permissive referendum, may abolish such office, but to take effect only upon the expiration of the then current term of such office, or establish a second office of village justice, which justice once elected shall have all the powers and duties of a village justice. The resolution or local law in the latter case shall provide for a term pursuant to section 3-302 of this article."

The provisions of Village Law § 3-302 which are referred to in Village Law § 3-301, subdivision 2, paragraph a, are Village Law § 3-302, subdivision 3, which provides:

"3. Except as is otherwise provided herein or in this chapter, the term of office of mayor, each trustee, treasurer and clerk shall be two official years and the term of office of village justice shall be four official years.

"If the board of trustees of any village establishes a second office of village justice pursuant to section 3-301 the resolution or local law therefor may provide for a single term of one, two or three years for such second village justice who shall serve a single term of one, two or three years, as provided in such resolution or local law, commencing on the first day of the official year following his election in order to provide that village justices shall thereafter be elected every two years. The successor of such justice shall thereafter be elected for a full four year term."

In our opinion, a village board of trustees may, either by local law or resolution, establish the second position of village justice in your village and such local law or resolution is subject to a permissive referendum which is governed by Article 9 of the Village Law (§§ 9-900 through 9-916); section 9-908 authorizes the village board of trustees on its own motion to submit the proposition without first requiring a petition such as is described in Village Law § 9-902.