Can a county require contractors who do business with it to disclose political contributions they have made within the past year?

Plain-English summary

Putnam County's Legislature proposed a resolution requiring every vendor and private business that contracts with the county to file a written disclosure of any political contributions over $100 made in the prior year to any county party or candidate. The Deputy County Attorney asked whether the Election Law preempted the proposal and whether the disclosure would survive First Amendment scrutiny.

The AG addressed only the preemption question and concluded that the proposal was preempted.

The opinion ran the standard New York preemption analysis. Local governments have broad home rule authority under Article IX of the State Constitution and the Municipal Home Rule Law to enact local laws related to their property, affairs, government, and to local police-power subjects. But home rule does not reach areas where the State has occupied the field. Preemption is established either by an explicit legislative declaration or by a comprehensive regulatory scheme so detailed that the Legislature plainly intended to leave no room for local regulation.

The Election Law's Article 14 (campaign receipts and expenditures, disclosure, contribution limits) is exactly that kind of scheme. The 1974 enactment of former Article 16-A (Article 14's predecessor) included a legislative declaration creating the State Board of Elections "vested with authority and responsibility for the execution and enforcement of all laws relating to the elective franchise" and committing to "full and complete disclosure of campaign financing and practices."

The State Board of Elections had already addressed local campaign-finance regulation in NY State Bd. of Elections, 1975 Op No. 7. The Board concluded the Legislature intended Article 16-A to preempt the entire campaign-finance subject matter. A prior AG informal opinion (95-46) reached the same conclusion for current Article 14.

The opinion drew on the leading New York preemption cases: Robin v Inc. Village of Hempstead (state Health Law preempted village abortion regulation, even when the village law tracked state policy); People v DeJesus (Alcoholic Beverage Control Law preempted local closing-hour rule); Consolidated Edison Co. v Town of Red Hook (state law preempted local nuclear-plant regulation); New York State Club Assn. v City of New York (state law preempted in named field). The common thread: when the State occupies a field, any local rule in that field is invalid, including rules that merely add disclosures or restrictions without conflicting with state policy. The line of cases distinguishes preemption from mere inconsistency. Vatore v Commissioner of Consumer Affairs and Jancyn Mfg. v County of Suffolk hold that, absent preemption, a local rule that is stricter than state law is permissible if it furthers state policy. Where preemption applies, no local rule survives.

The Putnam County resolution fit squarely within the preempted field. It targeted disclosure of political contributions, which is the core subject of Article 14 disclosure rules. Even though the county would not directly affect statewide reporting requirements, the proposed local disclosure would create an additional layer of obligation on the same actors (contributors and the campaigns receiving contributions), which is what the Legislature foreclosed.

The opinion also pointed out a practical point: the State Board of Elections already collects contribution information, so the data the county wanted to require disclosure of was already available from the State.

The opinion did not reach the First Amendment question. It left open whether, if a state were not preempted, a vendor-disclosure rule could survive constitutional scrutiny.

Currency note

This opinion was issued in 1998. 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.

Note that pay-to-play and government-contractor contribution restrictions have been a developing area since 1998, with both state-level reforms in New York and U.S. Supreme Court doctrine (including Citizens United v FEC and McCutcheon v FEC) reshaping the constitutional landscape. The 1998 opinion's preemption analysis is independent of those constitutional changes; the state legislative field-occupation question is still distinct from First Amendment analysis.

Common questions

Why doesn't home rule let a county add its own disclosure rule?

Home rule lets a local government enact laws on its property, affairs, and government, and lets it exercise police power on local subjects. But home rule is subject to the Constitution and general state laws, and is foreclosed when the State has occupied a field. The opinion treats Article 14 of the Election Law as a fully occupied field for campaign-finance disclosure, so the home rule doorway is closed.

What's the difference between "inconsistency" and "preemption"?

Inconsistency means a local law conflicts with a specific state statute. Local laws can be stricter than state law if they further the state policy and don't conflict. Preemption is broader: when the State has occupied an entire field, no local law on that subject is permitted, even if it doesn't conflict, even if it merely duplicates or supplements the state rule. Robin v Hempstead is the leading case for that distinction; the village abortion law was struck down even though it tracked the state's substantive policy.

Could the county try to draft the disclosure as a procurement rule rather than a campaign finance rule?

Maybe. The opinion did not address whether a procurement-policy version (e.g., a contractor-eligibility rule conditioned on contribution history) would survive. The proposed Putnam County text was a disclosure mandate phrased in terms of "vendors and private businesses that are contracted to do work." A procurement-eligibility ordinance might be analyzed differently. The opinion did not invite that workaround; it simply identified the proposed text as preempted.

What was the State Board of Elections' 1975 opinion?

It was issued shortly after Article 16-A (predecessor to Article 14) took effect. The Board examined the legislative debates, the statement of legislative intent, and the differentiation between state and local candidates in the article's provisions, and concluded the Legislature intended to preempt the entire subject matter. The 1998 AG opinion adopts that conclusion as still applicable to current Article 14.

Did the AG decide the First Amendment question?

No. The opinion ended at preemption. It noted that the county had also asked about constitutional infringement on vendors' First Amendment rights, but said the preemption answer made it unnecessary to reach that question.

Were there any options for the county?

Yes. The opinion noted: "We note that the information covered by the local proposal can be obtained from the State Board of Elections." A county that wants the data can request it from the State. The State Board of Elections collects contributions information for state and local candidates and political parties.

Background and statutory framework

Article IX of the New York Constitution and the Municipal Home Rule Law set the framework for local lawmaking. Local governments may enact local laws "relating to their property, affairs or government" if consistent with the Constitution and state law (NY Const Art IX § 2(c)(i); Municipal Home Rule Law § 10(1)(i)), and they may enact local laws on local police-power subjects (NY Const Art IX § 2(c)(ii)(10); Municipal Home Rule Law § 10(1)(ii)(a)(12)).

Article 14 of the Election Law is the comprehensive campaign-finance regulation. Section 14-100 sets definitions; § 14-102 covers contribution reports; § 14-104 covers expenditure reports; § 14-108 covers filing requirements; § 14-110 covers disclosures; § 14-114 sets contribution limits; § 14-130 covers special filing requirements. The State Board of Elections promulgates implementing regulations at 9 NYCRR Part 6200.

The leading state preemption cases the opinion relied on cover health (Robin v Hempstead), alcohol (DeJesus), nuclear power (Consolidated Edison v Red Hook), and clubs (NY State Club Assn.). All four held that local rules in fully State-occupied fields are invalid regardless of whether they conflict with State substance. Albany Area Builders Assn. v Town of Guilderland and Wholesale Laundry Bd. v City of NY are also cited.

The Vatore and Jancyn cases are important for what they don't say: they confirm that, where there is no preemption, local supplementation is permitted. The Putnam County legislation could not benefit from that line because the preemption gate closed earlier in the analysis.

General Municipal Law § 806 is a separate state-law on local ethics requirements. The opinion cited it among the statutes cataloged but did not rely on it as a separate ground.

Citations

• N.Y. Const. art. IX, § 2(c)(i) (local laws relating to property, affairs, or government).
• N.Y. Const. art. IX, § 2(c)(ii)(10) (local police-power subjects).
• Election Law Art 14 (comprehensive campaign finance regulation).
• Election Law § 14-100 (definitions).
• Election Law § 14-102 (contribution reports).
• Election Law § 14-104 (expenditure reports).
• Election Law § 14-108 (filing requirements).
• Election Law § 14-110 (disclosures).
• Election Law § 14-114 (contribution limits).
• Election Law § 14-114(1)(c) (limits applicable to local candidates).
• Election Law § 14-114(10)(d) (quadrennial recalculation of limits).
• Election Law § 14-130 (special filing requirements).
• General Municipal Law § 806 (municipal ethics code requirement).
• Municipal Home Rule Law § 10(1)(i) (property/affairs/government local laws).
• Municipal Home Rule Law § 10(1)(ii)(a)(12) (local police-power subjects).
• 9 NYCRR Part 6200 (State Board of Elections implementing regulations).
• Collins v Schenectady, 256 App Div 389 (3d Dept 1939) (form of local legislative enactments).
• New York State Club Assn., Inc. v City of New York, 69 NY2d 211 (1987), aff'd, 487 US 1 (1988) (local laws subject to constitutional/general law limits).
• Albany Area Builders Assn. v Town of Guilderland, 74 NY2d 372 (1989) (preemption test).
• Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99 (1983) (preemption of local nuclear plant regulation).
• People v DeJesus, 54 NY2d 465 (1981) (preemption test).
• Wholesale Laundry Bd. v City of NY, 17 AD2d 327 (1962), aff'd, 12 NY2d 998 (1963) (preemption test).
• Vatore v Commissioner of Consumer Affairs of City of New York, 83 NY2d 645 (1994) (local-state law consistency where no preemption).
• Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91 (1987) (local supplementation absent preemption).
• Robin v Inc. Village of Hempstead, 30 NY2d 347 (1972) (preempted local abortion regulation).
• People v DeJesus, 64 NY2d 455 (1981) (preempted local closing-hour rule for alcohol).
• Ames v Smoot, 98 AD2d 216 (2d Dept 1983) (preemption regardless of conflict or duplication).
• Dougal v County of Suffolk, 102 AD2d 531 (2d Dept 1984), aff'd, 65 NY2d 668 (1985) (same).
• NY State Bd. of Elections, 1975 Op No. 7 (Election Law preemption of local campaign finance regulation).
• Op Atty Gen (Inf) No. 83-57 (preemption analysis of Election Law).
• Op Atty Gen (Inf) No. 95-46 (preemption of local campaign finance limits).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-3_pw.pdf

Original opinion text

NY CONST, ART IX, § 2(c)(i) and (ii)(3), (10); ELECTION LAW,
ART 14, §§ 14-100, et seq., 14-102, 14-104, 14-108, 14-110,
14-130; GENERAL MUNICIPAL LAW § 806; MUNICIPAL HOME RULE LAW
§ 10(1)(i) and (ii)(a)(3), (12); 9 NYCRR PART 6200, et seq.
A local government is not authorized to enact local
legislation requiring written disclosure of political
contributions by vendors and private businesses that enter
contracts to perform county work. This subject has been
preempted by the provisions of the Election Law.
February 6, 1998

John J. Carmody, Esq.
Deputy County Attorney
County of Putnam
40 Gleneida Avenue
Carmel, New York 10512

Informal Opinion
No. 98-3

Dear Mr. Carmody:
You have informed us that the Putnam County Legislature has
proposed a resolution to require written disclosure of political
contributions by all vendors and private businesses that enter
contracts to perform county work. The resolution requires
disclosure of contributions made to any county political party or
candidate, in excess of $100, during the one-year period prior to
entering the contract. The vendors and businesses would also be
required to disclose the name of the candidate and/or political
party to whom they contributed.
You have asked whether the county is preempted by the
Election Law from enacting the proposed resolution and whether
the disclosure requirement unconstitutionally infringes upon the
First Amendment rights of vendors and private businesses. As
part of your inquiry, you have transmitted to us for review the
proposed resolution.
As a general policy, we do not review the details of
proposed local enactments, since these matters are more
appropriately reserved for consideration by local officials
familiar with local conditions and legislative intent. However,
we do advise local governments whether under State law they
possess the authority to enact measures dealing with various
subjects.

2
The aim of the county's proposed resolution is stated, in
pertinent part, as follows:
WHEREAS, the question of campaign
contributions from vendors and/or private
businesses to political parties, as well as
to candidates, is currently causing a great
deal of mistrust and ethical concerns among
the residents of this Nation, State and
County; and
WHEREAS, the good people of Putnam County
need to know that their County government is
taking all prudent and appropriate
precautions against unethical practices and
the appearance of unethical practices; and
.

.

.

RESOLVED, that effective immediately, all
vendors and private businesses that are
contracted to do work for Putnam County must
disclose in writing if within the past year
they have ever contributed to any political
party and/or candidate within our County in
an amount of over $100.00, and if so, to what
political party and/or to whom.
We note that the county has proposed enactment by
resolution. In our view, the proposal constitutes legislation
which should be enacted by local law. We presume that Article IX
of the Constitution and the Municipal Home Rule Law constitute
the authority for enactment of the proposal. See, Collins v
Schenectady, 256 App Div 389, 392 (3d Dept 1939), which discusses
the appropriate form of enactments for various types of action by
local legislative bodies.
We presume that the proposal would be authorized under the
home rule provisions of the Constitution and the Municipal Home
Rule Law. Local governments, including counties, are authorized
to enact local laws which are not inconsistent with the
Constitution or any general laws, relating to their property,
affairs or government. NY Const, Art IX, § 2(c)(i); Municipal
Home Rule Law § 10(1)(i). The proposal would also fall within
the authority of counties to enact local laws, consistent with
the Constitution and general laws, relating to the government,
protection, order, conduct, safety, health and well-being of
persons or property within the county. NY Const, Art IX,

3
§ 2(c)(ii)(10); Municipal Home Rule Law § 10(1)(ii)(a)(12). This
is the broad grant of police power to counties and other local
governments.
While there is authority for the proposal, the power to
enact local laws is not unlimited. Local laws must be consistent
with the Constitution and general State laws. See, New York
State Club Assn., Inc. v City of New York, 69 NY2d 211 (1987),
affd, 487 US 1 (1988). Also, the authority to enact local laws
is restricted where the New York State Legislature has expressed
an intent to preempt local legislation with respect to a
particular subject. Albany Area Builders Assn. v Town of
Guilderland, 74 NY2d 372 (1989); Consolidated Edison Co. v Town
of Red Hook, 60 NY2d 99 (1983); People v DeJesus, 54 NY2d 465
(1981); Wholesale Laundry Bd. v City of NY, 17 AD2d 327, 330
(1962), affd, 12 NY2d 998 (1963). A legislative intent to
preempt local legislation is evident either from a declaration of
State policy by the Legislature or from a comprehensive and
detailed regulatory scheme covering a particular subject. Id.
In our view, the county's proposal is preempted by State
law. Article 14 of the Election Law requires reporting and
disclosure of campaign receipts and expenditures and establishes
individual contribution limits. The genesis of these
requirements was Article 16-A of the prior Election Law, added by
Laws of 1974, chapter 604, § 466. Former Article 16-A included a
declaration of legislative intent.
The legislature intends by this law to create
a New York state board of elections vested
with authority and responsibility for the
execution and enforcement of all laws
relating to the elective franchise and to
further mandate full and complete disclosure
of campaign financing and practices, and to
maintain citizen confidence in and full
participation in the political process of our
state to the end that the government of this
state be and remain ever responsive to the
needs and dictates of its residents in the
highest and noblest traditions of a free
society.
As part of a recodification of the Election Law, Article 14
succeeded former Article 16-A. L 1976 ch 233. This
recodification represented a simplification and clarification of
existing law, eliminating obsolete and conflicting provisions.
Bill Jacket, L 1976 ch 233, Assembly Memorandum in Support.

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Substantive changes primarily affected administrative procedures.
Id.
The New York State Board of Elections issued an official
opinion subsequent to enactment of Article 16-A of the Election
Law responding to an inquiry as to whether a local legislative
body may enact a local law relating to the regulation of campaign
financing and practices. NY State Bd. Of Elections, 1975 Op No.

7. In finding that such a local law is preempted, the Board
   stated:
   [T]he transcripts of the legislative debates
   on the bill enacting Article 16-A, the
   article's statement of legislative intent,
   and the differentiation of the article's
   provisions between those relating to
   candidates for state offices and those
   relating to candidates for local offices all
   lead to the conclusion that the Legislature
   intended Article 16-A to preempt the entire
   subject matter area of campaign financing and
   practices.
   In a prior opinion of this office, we also concluded that
   current Article 14 of the Election Law preempts local
   legislation.
   It is evident from the comprehensive
   nature of the Election Law that the State
   intended to occupy fully the area of campaign
   contribution limits, leaving no room for
   additional local regulation. Article 14
   provides for detailed reporting and
   disclosure of campaign receipts and
   expenditures and establishes individual
   contribution limits. These limits are
   designed to apply to elections for party
   positions and to elections for and
   nominations for all public offices, including
   those at the local level. NY Election Law
   §§ 14-114, et seq.; 9 NYCRR Part 6200; see,
   Op Atty Gen (Inf) No. 83-57. Furthermore,
   these limits are specifically designed to be
   recalculated quadrennially by the State Board
   of Elections. Election Law §§ 14-114(1)(c)
   and 14-114(10)(d). Op Atty Gen (Inf)
   No. 95-46.

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Where there is no preemption, a local law is not
inconsistent with a State law because it prohibits that which the
State statute allows. Vatore v Commissioner of Consumer Affairs
of City of New York, 83 NY2d 645, 651 (1994). A local law
establishing regulation that is more stringent or expansive than
the State regulation in furtherance of State policy, is
consistent with the State law. Id., at 650; Jancyn Mfg. Corp. v
County of Suffolk, 71 NY2d 91 (1987). In contrast, where a
subject has been preempted any additional restrictions or
regulations would invalidate a local law. Thus, in Robin v Inc.
Village of Hempstead, 30 NY2d 347 (1972), the Court of Appeals
found that State law preempted the subject of abortion
legislation based upon a legislative declaration giving the
Department of Health central and comprehensive responsibility for
the development and administration of State policy regarding
hospital and related services. Id., at 350. The Court struck
down a village law which did not deviate from the State statute's
definition of a "justifiable abortional act" but added the
requirement that such abortions only be performed in a duly
licensed and accredited hospital with adequate equipment and
facilities. Similarly in People v DeJesus, 64 NY2d 455 (1981),
the Alcoholic Beverage Control Law was found to preempt the
regulation of establishments selling alcoholic beverages. Under
State law, alcoholic beverages could only be sold at retail for
on-premises consumption until 4:00 a.m. The Court of Appeals
invalidated a local law prohibiting the patronizing of
establishments selling alcoholic beverages after 2:00 a.m. The
finding of preemption prevented any additional local regulation,
even if in furtherance of the over-all State policy.
The courts have stated that where a State law indicates a
purpose to occupy an entire field of regulation, local regulation
is preempted regardless of whether the terms conflict with
provisions of the State statute or only duplicate them. Ames v
Smoot, 98 AD2d 216, 218, 220 (2d Dept 1983); Dougal v County of
Suffolk, 102 AD2d 531, 532-533 (2d Dept 1984), affd, 65 NY2d 668
(1985). A local government may not exercise its police power or
other home rule authority where the Legislature has preempted the
area of regulation. New York State Club Assn. v City of
New York, 69 NY2d at 217; Consolidated Edison Co. v Town of Red
Hook, 60 NY2d at 105.
We believe it is clear that Article 14 of the Election Law
has preempted the field of reporting and disclosure of campaign
receipts and expenditures. The county proposal, which would
require disclosure of political contributions in excess of $100
made to any political party or candidate, falls within the
subject matter preempted by State law. While the proposal does

6
not affect the application of Article 14 of the Election Law, it
establishes additional restrictions--disclosure requirements in
the county. These requirements are contrary to the Election
Law's initial statement of legislative purpose and its
comprehensive regulation of campaign receipts and expenditures
applicable to State and local elections under the jurisdiction of
the State Board of Elections. As the Court of Appeals found in
Robin v Inc. Village of Hempstead, 30 NY2d 347, there is a lack
of any "real distinction" between any particular locality and
other parts of the State regarding the subject matter of the
State regulation. Further, additional local regulation requiring
disclosure of campaign contributions or receipts potentially
could result in onerous filing requirements. The need for any
additional restrictions in this area must be determined by the
State Board of Elections within the scope of its jurisdiction or
by the State Legislature.
We note that the information covered by the local proposal
can be obtained from the State Board of Elections.
We conclude that the regulation of reporting of campaign
receipts and expenditures has been preempted by State law.
The Attorney General renders formal opinions only to
officers and departments of the 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