Can a New York non-charter county create a county administrator position without a public vote?

Subject

Mandatory referendum necessary only if establishment of county administrator transfers powers of elected officer

Plain-English summary

Schoharie County wanted to create a county administrator position without holding a referendum. The county attorney's concern was that the Alternative County Government Law § 656(2) required a referendum for any "alternative form of county government," and he worried that creating a county administrator would fall under that umbrella.

The AG worked through the history of county home rule in New York to clear up the confusion. The 1935 Fearon Amendment was the first grant of county home rule, implemented by the Optional County Government Law (Laws of 1937, ch. 862). That law was largely superseded by the Alternative County Government Law (Laws of 1952, ch. 834), which provided four alternative plans of county government that required referendums to adopt.

But the Fearon Amendment was repealed in 1963 and replaced by the current Article IX of the Constitution. Article IX § 1(h) directs the Legislature to authorize counties to adopt, amend, or repeal alternative forms of government. The Legislature implemented this through Article 4 of the Municipal Home Rule Law (the County Charter Law) and through the general home-rule grant in Municipal Home Rule Law § 10.

The result is that a county now has multiple, independent grants of authority. It can adopt a county charter under Article 4. It can also enact local laws under § 10 covering its officers and employees. The residual Alternative County Government Law does not restrict either path. If a county acts under § 10, the Alternative County Government Law's referendum requirement does not apply.

So a non-charter county can create a county administrator under § 10(1)(ii)(a)(1), which expressly authorizes local laws on the "powers, duties, qualifications, number, mode of selection and removal, terms of office" of municipal officers and employees. No referendum is required unless the local law abolishes, transfers, or curtails powers of an elective officer (Municipal Home Rule Law § 23(2)(f)).

The AG also referenced a prior 1981 informal opinion holding that a town could create a town administrator without triggering § 23(2)(f), as long as the administrator's powers were delegated rather than transferred. The administrator must act subject to the board's supervision, the board must retain ultimate decision-making authority, and the board must be able to assign, modify, or revoke administrative powers. The same logic applies to counties.

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

What is the difference between delegating and transferring power?

The AG draws this line carefully. A transfer of power moves the authority itself: the elected board no longer holds it. A delegation leaves the power with the board but allows another person (the administrator) to exercise it on the board's behalf, subject to supervision. The board can revoke a delegation at any time; a transfer requires another local law (and possibly a referendum) to undo. The AG opinion treats delegation as a safe path that avoids § 23(2)(f).

What does the local law have to say to stay safe?

Per the prior 1981 opinion the AG cites, the local law should: (1) make the administrator's actions subject to board approval, or (2) state that the administrator performs assigned duties on behalf of the board, subject to its supervision and control, and provide that the board may assign, modify, or revoke administrative powers from time to time. The administrator should also be required to report periodically to the board. With those features, no transfer occurs.

Could a county pick a different path, like creating an "administrative assistant to the chair of the board"?

Yes. Municipal Home Rule Law § 10(1)(ii)(b)(4) expressly authorizes counties to create an administrative assistant to the board chair and assign specified administrative functions, powers, and duties to that position. The statute requires the local law to provide that there is no divestment of the board's powers and that the assistant periodically reports back. The AG treated this as an alternative path, not a substitute for § 10(1)(ii)(a)(1).

Does the analysis change if the county is a charter county?

For charter counties, Article 4 of the Municipal Home Rule Law provides an even broader grant of authority. Charter laws need not be consistent with general state laws (Smithtown v Howell). The same delegation-versus-transfer line still matters, but the charter county has more flexibility on the structural side.

What about the federal/state question of who decides what is a "matter of state concern"?

This opinion treats the question of administrator creation as squarely within county home rule. Later opinion 1995-16 (on indigent defense plans) shows the same office holding that some matters, like the County Law § 722 indigent defense plan, are matters of state concern that even a charter county cannot vary. Read together, the two opinions sketch the line: administrative structure is local; constitutional rights to counsel are state-level.

Statutory framework

The opinion traces a long arc of New York county home-rule law. Key markers:

• NY Constitution Article III § 26 (1935) (Fearon Amendment, repealed 1963) was the first grant of county home rule.
• The 1937 Optional County Government Law implemented it with rigid alternative plans.
• The 1952 Alternative County Government Law replaced the optional law, adding referendum requirements for adoption (§ 656(2)).
• The current NY Constitution Article IX § 2(h) provides constitutional authority for county home rule.
• Article 4 of the Municipal Home Rule Law (the County Charter Law) implements the charter route.
• Municipal Home Rule Law § 10 provides the general home-rule grant for all local governments, including non-charter counties.
• Municipal Home Rule Law § 23(2)(f) requires a mandatory referendum if a local law abolishes, transfers, or curtails any power of an elective office.

The AG's reading is that § 10 stands as an independent path that does not require running through the Alternative County Government Law's referendum requirements.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-11_pw.pdf

Original opinion text

NY CONSTITUTION, ART IX § 2(h); NY CONSTITUTION, ART III § 26 (1935); ALTERNATIVE COUNTY GOVERNMENT LAW § 656(2); MUNICIPAL HOME RULE LAW §§ 10, 10(1)(ii)(a)(1), 10(1)(ii)(b)(3) AND (4), 23(2)(f), 33(1) AND (2); L 1952, CH 834; L 1937, CH 862. A county board of supervisors in a non-charter county may by local law establish the position of county administrator. Further, if the local law does not transfer, curtail or abolish the powers of an elective officer, it would not be subject to a mandatory referendum. In that the Municipal Home Rule Law, rather than the Alternative County Government Law, is the source of authority for the enactment, the latter would not require a referendum.

February 6, 1995

Michael A. West, Esq.
County Attorney
County of Schoharie
R. D. # 1 106M
Cobleskill, NY 12043

Informal Opinion
No. 95-11

Dear Mr. West:
You have asked whether the board of supervisors of a non-charter county may by local law, without a referendum, establish the position of county administrator. You have indicated that the local law would delegate rather than transfer powers of the county board of supervisors to the administrator. You are concerned that the establishment of a county administrator falls within the provisions of the Alternative County Government Law and would, therefore, be subject to a referendum under section 656(2) of that law. The so-called Fearon Amendment to the State Constitution, adopted in 1935, was the first step toward the granting of home rule powers to county governments. NY Const Art III, § 26 (1935) (repealed in 1963). The State Legislature carried out this constitutional amendment by enacting Chapter 862 of the Laws of 1937, the Optional County Government Law. That law authorized counties to adopt one of four specified forms of government. The options provided various forms for county administration. The Optional County Government Law was, for the most part, repealed and superseded by the Alternative County Government Law, which became effective in 1954. Laws of 1952, ch 834. The Alternative County Government Law provided four alternative plans of county government. Like the Optional County Government Law, counties could make only limited variations, depending upon the plan which was adopted. The major difference between the Optional County

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Government Law and the Alternative County Government Law is that under the latter law counties are given the authority to make various county offices elective or appointive through a vote of the electorate. As you have pointed out, no alternative form of county government may become operative in a county unless approved at the required referendum. Alternative County Government Law § 656(2). You suggest that establishment of a county administrator is an "alternate form of county government" under the Alternative County Government Law, thus subject to referendum. Current Article IX of the Constitution was adopted in 1963. Section 1(h) of Article IX requires the Legislature to authorize counties to adopt, amend or repeal alternative forms of county government. The Legislature has implemented this provision through the adoption of Article 4 of the Municipal Home Rule Law, which is referred to as the County Charter Law. Subject to limited restrictions, Article 4 authorizes a county to establish a county charter setting forth the structure of county government and the manner in which it is to function. Municipal Home Rule Law § 33(1), (2). Within this field, the grant of authority is broad in that neither the Constitution nor the County Charter Law requires that charter laws be consistent with general State laws. The courts have upheld charter laws that are inconsistent with general State laws. Smithtown v Howell, 31 NY2d 365 (1972); Heimbach v Mills, 67 AD2d 731 (2d Dept 1979). Article IX(1)(h) of the Constitution, which formed the basis for Article 4 of the Municipal Home Rule Law (the County Charter Law) replaced the Fearon Amendment, which was repealed in 1963. Thus, the first step toward county home rule was the provision by the Legislature of rigid alternative plans of county government. In 1963, with the enactment of Article 4 of the Municipal Home Rule Law, a broad grant of authority was provided to counties to establish the structure of county government and the manner in which it is to function. In our view, the residual Alternative County Government Law does not serve to restrict a county establishing a charter under Article 4 of the Municipal Home Rule Law nor does it restrict a charter or non-charter county acting by local law under Article IX of the Constitution and section 10 of the Municipal Home Rule Law. Counties can look to Article 4 and section 10 of the Municipal Home Rule Law as separate grants of authority. In acting under section 10 or Article 4, the Alternative County government Law is irrelevant. May a county enact a local law under section 10 of the Municipal Home Rule Law to establish the office of county administrator and do so without subjecting the local law to approval at a referendum? Authority exists for enactment of the local law. Municipal Home Rule Law § 10(1)(ii)(a)(1). Further,

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we believe, provided the local law would not abolish, transfer or curtail a power of an elected officer, that it would not be subject to a mandatory referendum. Municipal Home Rule Law
§ 23(2)(f). (The local law would not be subject to a referendum under the Alternative County Government Law in that the county would not be using that law as its source of authority.) In a prior opinion, we found that a town may establish the position of town administrator using section 10 of the Municipal Home Rule Law as the source of authority. 1981 Op Atty Gen (Inf)

101. Under section 10(1)(ii)(a)(1), a county, city, town or
     village may enact a local law relating to the powers, duties, qualifications, number, mode of selection and removal, terms of office, compensation, hours of work, etc., of its officers and employees. We found that if the local law permits the town administrator to act only with the approval of the town board, there is no transfer of powers. We stated that the town board could approve or disapprove any action proposed by the administrator, thus retaining ultimate decision-making authority. A second possibility is a local law which assigns or delegates but does not transfer administrative powers to a town administrator. We envisioned a local law that would provide for the administrator to perform assigned duties on behalf of the town board and subject to its supervision and control. We suggested that the local law provide for the town board to assign, modify or revoke administrative powers from time to time and require the officer to report periodically to the board. Under these two scenarios, we found that the local law establishing the position of administrator would not be subject to a mandatory referendum in that there would occur no transfer or curtailment of the power of an elective officer. The reasoning of the 1981 opinion would apply to counties, which have the same grant of home rule power. Municipal Home Rule Law
     § 10(1)(ii)(a)(1).
     We note that section 10 of the Municipal Home Rule Law also gives a county the authority to create the office of administrative assistant to the chairman of the board of supervisors and to assign to the administrative assistant, under the general supervision of the chairman, specified administrative functions, powers and duties to be performed on behalf of the board of supervisors with provision for periodic reports to the board. Further, the local law would provide that there could occur no divestment of the functions, powers and duties of the board of supervisors. Municipal Home Rule Law § 10(1)(ii)(b)(4). Also, a county is authorized to enact a local law providing for the assignment to the chairman of the board of supervisors of specified administrative functions, powers and duties on behalf of the board with provision for periodic reports to the board. The local law would also provide that the assignment of administrative functions to the chairman would not divest the

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board of its functions, powers and duties.
§ 10(1)(ii)(b)(3).

Id.,

We view these two delegations of authority as additional options that a county board of supervisors may utilize but not as limitations on the establishment of the position of county administrator under section 10(1)(ii)(a)(1). The review of local proposals to determine if any duties would transfer powers is beyond the scope of our opinions function. This is the responsibility of local officials, familiar with local conditions and local legislative intent. We conclude that a county board of supervisors in a non-charter county may by local law establish the position of county administrator. Further, if the local law does not transfer, curtail or abolish the powers of an elective officer, it would not be subject to a mandatory referendum. In that the Municipal Home Rule Law, rather than the Alternative County Government Law, is the source of authority for the enactment, the latter would not require a 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