If a New York city wants to take away the mayor's sole appointment power and require city council consent, does the change have to go on the ballot?

Plain-English summary

The City of Ithaca had adopted three local laws taking sole appointment power away from the mayor for the planning board, zoning board of appeals, and community police board. Going forward, the mayor's nominations for those boards would require common council consent. None of those local laws went to a referendum. The city attorney had advised that referenda were required and asked the AG to confirm that reading. The AG agreed: each of the three local laws was subject to a mandatory referendum under Municipal Home Rule Law § 23(2)(f) because each curtailed a power of an elective officer (the mayor).

The AG walked through the home-rule framework. Cities have authority under the State Constitution and the Municipal Home Rule Law to enact local laws on their own affairs, including on the mode of selection and removal of local officers (Municipal Home Rule Law § 10(1)(ii)(a)(1)) and on land use (the Kamhi v Yorktown line of authority confirmed planning and zoning fall within home-rule power). The City of Ithaca's local laws specifically superseded General City Law §§ 27 and 81, which had been reenacted as part of the 1993 legislative session, and the supersession was effective because those General City Law sections were not "general laws" applicable to all cities for purposes of the home-rule definition.

Once supersession is established, Municipal Home Rule Law § 23(2)(f) kicks in. It requires a mandatory referendum whenever a local law "abolishes, transfers or curtails any power of an elective officer." The AG concluded that taking sole appointment authority away from the mayor and conditioning it on common council consent curtails the mayor's appointment power. So all three Ithaca local laws needed a referendum to take effect, and the failure to hold one invalidated them.

The AG also addressed the mayor's apparent acquiescence. Even if the mayor favors the reduction, the referendum is still required. The protection runs both to the elected officer and to the electorate, whose franchise included selecting a mayor with a particular set of powers. And the AG noted the de facto officer doctrine: actions taken by board members appointed under the invalid local laws are still valid as to third parties, so existing decisions stand even though the appointment process needs to be corrected going forward.

Currency note

This opinion was issued in 1996. 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 Municipal Home Rule Law § 23(2)(f)?
A subsection of the Municipal Home Rule Law that lists local laws subject to mandatory referendum. One of the triggers is a local law that "abolishes, transfers or curtails any power of an elective officer." If a city's local law fits that description, it does not take effect unless a majority of the qualified electors approve it at a referendum.

Why does requiring council consent count as "curtailing" the mayor's power?
Because it converts sole appointment authority into shared authority subject to a veto. Before the local law, the mayor could appoint to the planning board, ZBA, or community police board on her own. After, every nomination is subject to council approval, and the council can reject. That reduces the mayor's authority, and "curtail" includes any meaningful reduction (the Morin v Foster line of cases supports this).

Why does it matter whether General City Law §§ 27 and 81 are "general laws"?
Because local laws may not be inconsistent with general laws. If §§ 27 and 81 were general laws, the city's local laws would have to comply with them, which would have prevented supersession. But "general law" for home-rule purposes is a State law that applies in terms and effect alike to all counties, all cities, all towns, or all villages (N.Y. Const. art. IX, § 3(d)(1)). The AG concluded that §§ 27 and 81 do not apply alike to all cities (they have city-by-city variations and exceptions), so they were not general laws and could be superseded.

What does the de facto officer doctrine do here?
It saves the validity of decisions made by board members who were appointed under the (now-invalid) local laws. Under the doctrine, acts of someone who has carried out the functions of public office "under color of authority" are generally valid as to third persons and the public, even if there was an irregularity in the appointment. So planning board decisions, ZBA decisions, and community police board actions taken before the local laws were challenged stand.

Does the city have to go back to using the old appointment method?
The AG said yes, return to the appointment methods in force before the invalid local law, while bearing in mind that General City Law §§ 27 and 81 (the State default for city planning board and ZBA appointments) were reenacted in 1993 and would apply unless the city successfully supersedes them through a new, properly enacted local law (i.e., one that goes to referendum if § 23(2)(f) applies). For the community police board, the prior local law's method (sole mayoral appointment) would govern.

Does the mayor's consent to the change help?
No. The Municipal Home Rule Law does not have an exception for situations where the affected elected officer agrees to the curtailment. The referendum requirement also protects the electorate's choice, which is independent of the officeholder's preference at the moment of the local law's enactment.

Background and statutory framework

The opinion sits at the intersection of three constitutional and statutory tracks:

(1) Home rule. N.Y. Const. art. IX, § 2(c) authorizes local governments to adopt local laws consistent with the Constitution and with general laws, relating to their property, affairs, or government. Municipal Home Rule Law § 10 implements that authority and lists subjects on which local laws may be adopted. Subjects relevant here include the mode of selection and removal of officers (§ 10(1)(ii)(a)(1)) and the protection of persons or property (§ 10(1)(ii)(a)(12)), the police-power grant on which planning and zoning rest.

(2) The supersession question. Local laws may not be inconsistent with general laws or with statutes the Legislature has preempted. The AG concluded that General City Law §§ 27 and 81 are not "general laws" under the home-rule definition (N.Y. Const. art. IX, § 3(d)(1); Municipal Home Rule Law § 2(5)) because they do not apply in terms and effect alike to all cities. With supersession authority confirmed (and explicitly recognized by the bill drafters in the 1993 legislative materials), the City of Ithaca's local laws could supplant the State defaults.

(3) The referendum trigger. Municipal Home Rule Law § 23(2)(f) makes any local law that "abolishes, transfers or curtails any power of an elective officer" subject to a mandatory referendum. The AG read the change to mayoral appointment authority (sole to consent-required) as a curtailment, relying on Morin v Foster and Matter of Fogerty v Warden, and on prior AG opinion 88-33. Section 23(1) makes clear that a local law subject to mandatory referendum is operative only if approved.

The de facto officer doctrine (Ontario v Western Finger Lakes, 167 AD2d 848 (4th Dept 1990)) supplies the bridge between invalid local law and existing board actions. The doctrine validates the acts of officers who carried out their functions under color of authority, regardless of irregularities in the appointment process.

The 1993 legislative reenactments (L 1993 Ch 208 amending General City Law § 81, and L 1993 Ch 211 amending General City Law § 27) supply the State-law backdrop. The Legislative Commission on Rural Resources, as primary drafter, expressly recognized that some local governments would want to supersede the new state defaults.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-18_pw.pdf

Original opinion text

NY CONST, ART IX, § 2(c); GENERAL CITY LAW §§ 27, 81; MUNICIPAL HOME RULE LAW §§ 2(5), 10, 23(2)(f); STATUTE OF LOCAL GOVERNMENTS § 10(6); L 1993, CH 208, § 1; L 1993 CH 211, § 1.

A local law curtailing the power of appointment of the mayor is subject to a mandatory referendum.

June 17, 1996

Mariette Geldenhuys, Esq.
City Attorney
City of Ithaca
108 East Green Street
Ithaca, NY 14850

Informal Opinion No. 96-18

Dear Ms. Geldenhuys:

You have advised the mayor and city council that referenda were required to approve amendments to the city's code making appointments by the mayor of members of the planning board, board of zoning appeals and community police board subject to the consent of the city council. Based on this advice by the city attorney, the mayor has made appointments to the planning board without consent by the city council. You have asked for our opinion as to whether the advice given by your office is correct under State law. If referenda were required, you plan to take the necessary procedural steps to adopt properly the amendments. Under section 23(1) of the Municipal Home Rule Law, a local law subject to mandatory referendum becomes operative only if approved by a majority of the qualified electors voting on the proposition.

A local law dated April 6, 1994 amended a section of the Ithaca Municipal Code relating to the creation, organization, appointment of members and powers of the city's planning board. Under the former provision, appointments to the planning board were made exclusively by the mayor. The local law amended this provision to make the mayor's power to appoint members of the planning board subject to the consent of the common council.

A local law dated March 2, 1994 amended a section of the Ithaca Municipal Code relating to the creation, organization, appointment of members and powers of the city's board of zoning appeals. Under the former Code provision, appointments to the board of zoning appeals were to be made in accordance with the provisions of section 81 of the General City Law. At the time, section 81 provided that appointments to a city board of zoning appeals were to be made by the mayor or in a city having a city manager, in some cases by the manager. Therefore, under the former Code provision, Ithaca's mayor had exclusive power to make appointments to the zoning board of appeals. The local law amending the Code provision makes appointment by the mayor of members of the board of zoning appeals subject to the consent of the common council.

Under section 27 of the General City Law, reenacted by chapter 211 of the Laws of 1993, members of a city planning board are appointed by the mayor or other authorized appointing authority. Under section 81 of the General City Law, reenacted by chapter 208 of the Laws of 1993, members of a city board of zoning appeals are appointed by the mayor or in a city having a city manager, in some cases by the city manager.

You informed us that the city's local laws specifically superseded chapters 208 and 211, including sections 27 and 81. Authority to supersede is relevant because without it State law would be paramount and the referendum issue may not be reached as to the validity of the above two local laws. The authority of the city to supersede State laws is well supported. Local governments are constitutionally authorized to adopt and amend local laws, consistent with the Constitution or any general law, relating to their property, affairs or government and to delineated subjects. NY Const, Art IX, § 2(c); see also, Municipal Home Rule Law § 10. Thus, a significant limitation on the enactment of local laws is the requirement that they be consistent with "general laws" enacted by the Legislature. A "general law" is

[a] law which in terms and in effect applies alike to all counties, all counties other than those wholly included within a city, all cities, all towns or all villages.

NY Const, Art IX, § 3(d)(1). Therefore, as to cities, a "general law" is one that applies in terms and in effect alike to all cities. See also, Municipal Home Rule Law § 2(5). In the home rule context, "general law" has a distinct definition, in that it is a reference to a State law applicable to all municipalities of a certain type. Matter of Smithtown v Howell, 31 NY2d 365, 375 (1972); see also, Matter of Johnson v Etkin, 279 NY 1, 5-6 (1938). Compare the different definition of "general law", which includes classifications of municipalities, outside the home rule context. See, Kelley v McGee, 57 NY2d 522 (1982) (matters of State concern); Hotel Dorset Company v Trust for Cultural Resources, 46 NY2d 358 (1978) and Farrington v Pickney, 1 NY2d 74 (1956) (under other provisions of the Constitution).

Neither section 27 nor 81 of the General City Law is a "general law" under the home rule definition in that neither is applicable to all cities. Therefore, provided that the local laws enacted by the City of Ithaca fall within the scope of its home rule law authority, they may supersede sections 27 and 81 of the General City Law. The Court of Appeals has decided that zoning and planning regulations fall within a municipality's home rule authority. Kamhi v Town of Yorktown, 74 NY2d 423 (1989). The Court refers to the grant of power to a municipality to enact local laws relating to the "government, protection, order, conduct, safety, health and well-being of persons or property therein". 74 NY2d at 433; Municipal Home Rule Law § 10(1)(ii)(a)(12). Also, the Court recognizes the authority of a municipality to adopt local laws to exercise the powers granted to it in the Statute of Local Governments. 74 NY2d at 433. Section 10(6) of the Statute of Local Governments authorizes cities, villages and towns to adopt, amend and repeal zoning regulations. Further, regarding the provisions of the Ithaca local laws modifying the power of appointment to local boards, we note that a city may adopt and amend local laws dealing with the mode of selection and removal and other terms and conditions of employment of its officers and employees. Municipal Home Rule Law § 10(1)(ii)(a)(1); see, Resnick v County of Ulster, 44 NY2d 279 (1978). Therefore, there is ample authority for the Ithaca local laws relating to the planning board and zoning board of appeals.

You also have informed us that in 1970 the city enacted a local law creating a community police board composed of three members appointed by the mayor. In 1984, the local law was amended whereby the board was enlarged from three to five members to be appointed by the mayor subject to the approval of the common council. These local laws fall within the authority of a municipality to adopt and amend local laws relating to the government, protection, order, conduct, safety, health and well-being of persons or property therein, the grant of police power. Municipal Home Rule Law § 10(1)(ii)(a)(12). Also, a municipality has authority to establish and define the terms and conditions of employment of local boards and positions. Id., § 10(1)(ii)(a)(1).

Your question is whether any of the three local laws adopted by the City of Ithaca were subject to a mandatory referendum. Under section 23(2)(f) of the Municipal Home Rule Law, a local law is subject to a mandatory referendum if it "[a]bolishes, transfers or curtails any power of an elective officer". The three local laws made the mayor's approval power subject to the consent of the common council. In our view, this change curtailed the appointing power of the mayor. His appointments to the three boards could be rejected by the common council. See, Morin v Foster, 45 NY2d 287 (1978); Matter of Fogerty v Warden, 191 Misc 916 (Sup Ct Orange Co), affd, 273 App Div 910 (2d Dept), affd, 297 NY 963 (1948); Op Atty Gen (Inf) No. 88-33. Therefore, each of the three local laws was subject to a mandatory referendum under section 23(2)(f) of the Municipal Home Rule Law. The failure to conduct a referendum where one is required by law invalidates the local law. Morin v Foster, supra. The city would have to adopt new local laws, and follow the procedure for conducting a mandatory referendum on each proposed local law.

You have suggested that a referendum may not be necessary for the amendments to the Ithaca Municipal Code regarding the appointment of planning board members in that section 27 of the General City Law provides for appointments "by the mayor or other duly authorized appointing authority". Emphasis provided. The problem with this argument is that the legislative body of the city by local law purported to supersede section 27 of the General City Law. Therefore, section 27 cannot be considered in determining the referendum issue.

Additionally, you have asked, if the mayor favored the reduction in his power of appointment, whether this factor would impact on the referendum requirement. The Municipal Home Rule Law does not recognize such an exception. The referendum requirement protects not only elected officials but also preserves the elective franchise of the public whereby they have selected an official to hold office with a designated array of powers.

Regarding the community police board, in the event that a mandatory referendum is required, you have asked what appointment procedure should apply pending corrective action by the city council. In that the failure to hold a referendum, where required, invalidates a local law, the city should return to the appointment methods in force prior to that law's apparent enactment. The same is true regarding the other two local laws. You should consider, however, the applicability of reenacted sections 27 and 81 of the General City Law.

We note that actions taken by persons appointed under invalid local laws are considered valid under the de facto officer doctrine. Ontario v Western Finger Lakes Solid Waste Management Authority, 167 AD2d 848 (4th Dept 1990).

Under the de facto officer doctrine, the acts of one who carries out the functions of a public office under color of authority are generally valid as to third persons and the public, and hence immune from collateral attack, notwithstanding irregularities in the manner in which the officer was appointed.

Id., p 849. The de facto officer doctrine is founded upon reasons of policy and necessity, in that it protects the interests and reasonable expectations of the public which must rely on the presumptively valid acts of public officials. Id.

We concur with the conclusion of the city attorney that referenda were required to approve the amendments to the city's code because they curtailed the power of appointment of the mayor.

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,

Victoria A. Graffeo