Can a NY city require its city council to confirm the mayor's appointments to the planning commission?

Subject

Planning commission appointment by the mayor subject to council confirmation

Plain-English summary

Note: the original "subject" line on this opinion was mistakenly indexed in the AG's database as referencing human service agencies (soup kitchens, drug treatment) when in fact the substance is about planning commission appointments. The slug reflects the database glitch; the opinion is about appointments.

The City of Schenectady's charter required that mayoral appointments to the city planning commission be confirmed by the city council. The deputy corporation counsel asked whether that charter provision conflicted with three state-law sources: General Municipal Law § 234 (which authorizes city planning commissions and says the ordinance creating one "shall specify the public officer or body" that appoints members), General City Law § 27 (which says planning board members "shall be appointed by the mayor or other duly authorized appointing authority"), and Municipal Home Rule Law § 11(2)(a) (which restricts charter amendments inconsistent with the charter's own amendment rules).

The AG concluded none of the three created a conflict.

On § 234: the opinion reads the requirement to specify an appointing "officer or body" as a requirement to state the appointment method in the ordinance or resolution. It concludes that the provision does not prohibit an appointment subject to confirmation. It does not decide whether the council itself may appoint without a mayoral role.

On § 27: it expressly allows appointment by the mayor "or other duly authorized appointing authority." A mayoral appointment that is ratified by the council still counts as a mayoral appointment under settled AG and case law. Confirmation is a procedural overlay, not a substitution of appointing power.

On § 11(2)(a): that section restricts local laws amending the charter contrary to the charter's own amendment procedure. Nothing in the inquiry suggested the confirmation rule had been added in violation of those procedures, so the section was not triggered.

The AG closed with the doctrinal point that runs through several of the office's planning-commission opinions: when an executive appoints and the legislative body ratifies, the appointment is still treated as made by the executive (citing 1974 Op Atty Gen [Inf] 204 and Op Atty Gen [Inf] No. 90-70).

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 doesn't council confirmation count as the council "appointing" the members?

The opinion says that when an executive makes an appointment and the legislative body ratifies it, the appointment is considered to be made by the executive. It applies that principle to the mayor's planning commission appointments in Schenectady.

Could a city give appointment power entirely to the council, with no mayoral role?

The opinion does not decide whether a council acting alone can appoint planning commissioners. It notes that "officer or board" are the logical alternatives named in § 234, then decides only that mayoral appointment subject to council confirmation is permitted.

Does this opinion control on every planning-related appointment?

It addresses Schenectady's planning commission appointments under the cited state laws. It does not decide appointment rules for other boards or commissions.

What about charter conflict with state law more generally?

The opinion addresses one asserted conflict under Municipal Home Rule Law § 11(2)(a). The request did not indicate that the charter's appointment method was adopted contrary to the charter's own amendment procedure. It does not analyze other home-rule questions.

Statutory framework

General Municipal Law § 234 authorizes the creation of city planning commissions and requires that the creating ordinance or resolution specify the appointing officer or body.

General City Law § 27 sets default rules for planning board membership, including that members "shall be appointed by the mayor or other duly authorized appointing authority." The "or other duly authorized appointing authority" phrase is the key opening for council-confirmation models.

Municipal Home Rule Law § 11(2)(a) restricts the adoption of local laws that amend a city charter in ways contrary to the charter's own amendment rules. This is a procedural safeguard about how charter changes happen, not a substantive limit on what they can say.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-13_pw.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

GENERAL CITY LAW § 27; GENERAL MUNICIPAL LAW § 234; MUNICIPAL HOME RULE LAW § 11(2)(a).

The appointment by the mayor of the City of Schenectady of members of the planning commission, subject to confirmation by the city council, is not inconsistent with provisions of State law.

February 8, 1995

Paul H. Tocker, Esq.
Deputy Corporation Counsel
City of Schenectady
City Hall, Rm. 201
Schenectady, NY 12305-1938

Informal Opinion
No. 95-13

Dear Mr. Tocker:

You have asked whether provisions of the Schenectady City Code, subjecting the appointment by the mayor of members of the city planning commission to confirmation by the city council, is consistent with provisions of State law.

You have indicated that under the City Code appointments to the planning commission are required to conform with section 234 of the General Municipal Law and section 27 of the General City Law. Under section 234, an ordinance or resolution creating a city planning commission

shall specify the public officer or body of said municipality that shall appoint such commissioners.

In our view, this language is simply a requirement that the method of appointment be included in the resolution or ordinance. The logical alternatives are appointment by an officer or board, thus their inclusion in the statute. By its terms, section 234 does not prohibit an appointment subject to confirmation. In any event, when an appointment is made by an executive and ratified by the legislative body, the appointment is considered to be made by the executive. See, 1974 Op Atty Gen (Inf) 204; Op Atty Gen (Inf) No. 90-70.

Under section 27(1) of the General City Law,

[m]embers and the chairperson of such planning board shall be appointed by the mayor or other duly authorized appointing authority.

The authorization for appointment by another appointing authority would permit an appointment by the mayor subject to ratification by the legislative body. Further, as mentioned above, an appointment by an executive with ratification by the legislative body is considered to be an appointment by the executive.

You have also suggested that this appointment method violates section 11(2)(a) of the Municipal Home Rule Law, which establishes restrictions on the adoption of local laws. Under that provision, a city may not adopt a local law which amends the charter of the city "contrary to any provision of such charter regulating its own amendment". You have not indicated that the procedure by which the current method for appointing planning commission members was added to the charter was inconsistent with provisions of the charter governing its amendment.

We conclude that the appointment by the mayor of the City of Schenectady of members of the planning commission subject to confirmation by the city council is not inconsistent with provisions of State law.

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