Does changing how the mayor is chosen in a small commission-run city require voter approval?

Subject

Transfer of power under city charter

Plain-English summary

The City of Sherrill is governed by a five-member city commission. The mayor is not elected directly by voters; the five elected commissioners pick a chairperson from among themselves after each election, and the chairperson serves as mayor. If no one gets a majority of the commissioners' votes, the commissioner with the highest vote total at the prior election becomes chairperson and mayor by default.

The city wanted to amend the charter to create a "vice-chair" position. The vice-chair would be the commissioner with the most seniority. If the commissioners deadlocked, the vice-chair (not the top vote-getter) would become chairperson and mayor.

The city attorney asked whether this amendment needed voter approval through a mandatory referendum. He focused on Municipal Home Rule Law § 23(2)(d), which requires a referendum to change the manner of election or succession to an elective office, and argued it should not apply because the mayor's office in Sherrill is not directly elective.

The AG sidestepped that question. Even if § 23(2)(d) did not apply, the amendment plainly fell under § 23(2)(f), which requires a referendum any time a local law "abolishes, transfers or curtails any power of an elective office." The commissioner who had the highest vote count was an elected official, and the amendment would transfer his or her power to serve as chairperson and mayor (in the deadlock scenario) to a different commissioner. Under the Court of Appeals' strict construction in Morin v Foster, any curtailment counts: courts do not balance the law's net effect on the legislative body.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why does it matter whether § 23(2)(d) or § 23(2)(f) applies?

It does not for the bottom line; both require a mandatory referendum. The AG chose the cleaner path: he did not have to resolve whether the chair-and-mayor designation counted as a directly elective office, because § 23(2)(f) was triggered as long as any elective office (here, the commissioner who is the top vote-getter) lost a power.

What did Morin v Foster establish?

Morin v Foster, 45 NY2d 287 (1978), held that the mandatory-referendum requirement under what is now § 23(2)(f) is triggered whenever any power of an elective office is curtailed. The Court rejected a balancing test that would weigh enhancements against curtailments. Any curtailment alone, even if other parts of the same law increase the office's powers, triggers the referendum.

Could the city have done this through a public hearing without a referendum?

The opinion concludes that Sherrill's proposed amendment requires a mandatory referendum under Municipal Home Rule Law § 23(2)(f). It does not address whether a hearing is also required.

What about minor housekeeping changes to a charter?

The opinion analyzes a proposed transfer of the highest vote-getting commissioner's power to serve as chairperson and mayor when the commission cannot choose one by majority vote. It does not classify other charter amendments or describe their adoption procedures.

How does this affect commission-form cities specifically?

The opinion decides that Sherrill's particular proposal would transfer a power of an elective office and therefore requires a referendum. It does not decide how another commission city's charter or succession rules would be treated.

Statutory framework

Municipal Home Rule Law § 23 lists categories of local laws that require mandatory referendums before they take effect. Two are at issue here:

• § 23(2)(d) covers local laws changing the manner of election of, or succession to, an elective office.
• § 23(2)(f) covers local laws that abolish, transfer, or curtail any power of an elective officer.

Section 23(2)(f) has been read strictly by the courts. Morin v Foster established that any curtailment, however slight, triggers the referendum requirement; the courts do not engage in net-effect balancing.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-8_pw.pdf

Original opinion text

MUNICIPAL HOME RULE LAW § 23.
A proposed amendment to the city charter that transfers powers of a member of the city commission to be chairperson and mayor is subject to a mandatory referendum. February 3, 1995

Dennis K. McDermott, Esq.
City Attorney
City of Sherrill
Chase Manhattan Bank Building
112 Farrier Avenue
Oneida, NY 13421

Informal Opinion
No. 95-8

Dear Mr. McDermott:
You have asked whether Municipal Home Rule Law § 23(2)(d) requires a mandatory referendum to approve an amendment to the city charter concerning the law of succession to the office of mayor where, under the city charter, the mayor is not elected by the voters. You have indicated that the City of Sherrill is governed by a five-member city commission. Under the city charter, following the election the five commissioners are to select from among themselves a chairperson of the commission who is also the mayor of the city. The city charter also provides that if no member of the commission receives a majority vote to be chairperson and mayor, the commission member receiving the greatest number of votes at the last election of commissioners becomes the chairperson and mayor of the city. In 1971, the charter was amended to give commissioners staggered terms. As a result, in the event the commissioners were unable to choose (by majority vote) a chairperson and mayor, only those commissioners who were elected at the prior election would be eligible to serve as chairperson and mayor by receiving the highest vote total. An amendment is now proposed that would create the office of vice-chair (and deputy mayor) to be filled by the commissioner having the greatest seniority. The vice-chair would serve as chairperson and mayor in the event the commissioners are unable, by a majority vote, to choose a chairperson and mayor. You have asked whether this local law amending the charter is subject to a mandatory referendum under section 23(2)(d) in that it would change the law of succession to the office of mayor. In your view, section 23(2)(d) does not require a mandatory referendum in

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this case because the office of mayor in the City of Sherrill is not an elective office. Without determining whether a mandatory referendum is required under section 23(2)(d), we believe that the local law clearly is subject to mandatory referendum under other provisions. Under section 23(2)(f), any local law that abolishes, transfers or curtails any power of an elective office is subject to a mandatory referendum. The proposed amendment to the city charter would, in the event the commissioners are unable by majority vote to select a chairperson and mayor, transfer the power of the highest vote getter to serve as chairperson and mayor of the city. Instead, the vice-chair, held by the commissioner with the most longevity, would act as mayor under those circumstances. Section 23(2)(f) has been strictly construed by the courts. Morin v Foster, 45 NY2d 287 (1978); 1983 Op Atty Gen (Inf) 93, 96; 1970 Op Atty Gen (Inf) 80. Any time an elective officer's powers are abolished, curtailed or transferred, notwithstanding that another board member's powers are increased, a mandatory referendum is required. The Court of Appeals has precluded a balancing approach, i.e., weighing the provisions enhancing the legislature's powers with those that curtail it to determine which predominates. Rather, the Court has held that
[t]he Constitution requires that a permissive referendum be held where the law curtails 'any power' of an elective official (art IX, § 1, subd [h], par [2]). We are not free to balance the various aspects of a law but must only determine whether any power has been curtailed. Any claimed enhancement of some legislative powers does not negate the curtailment of others. We must reject, therefore, the appellants' balancing approach and enforce the constitutional requirements.

Morin, supra, at p 294.
We conclude that a proposed amendment to the city charter that transfers powers of a member of the city commission to be chairperson and mayor is subject to a mandatory referendum. The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office. Very truly yours,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions