Can the City of Auburn hold a referendum on any power delegated by its charter or by State law, even though no State statute specifically authorizes that referendum?

Plain-English summary

The City of Auburn's charter included a provision authorizing the city council to put any proposal authorized by the charter or by other State laws to a vote of the people at a general or special election. Auburn's Corporation Counsel asked whether this was a valid grant of referendum authority.

The AG said no.

In New York, a local government cannot hold a referendum without specific State legislative authorization. That principle is well established and the opinion cited three prior AG informal opinions (91-19, 90-24, 85-1) confirming it. A charter provision purporting to give general referendum authority, without a specific State statute backing it up, is invalid.

The Auburn charter was originally enacted under the Optional City Government Law of 1914 (L 1914, Ch 444). That statute was repealed in 1939 (L 1939, Ch 765), but plans of city government adopted under it remained in effect until repealed or superseded by local law. So Auburn's charter, although tied to a long-dead statute, was still operative.

The Optional City Government Law itself did not authorize referendums. To the contrary, Article I § 10 of L 1914 Ch 444 provided that "Nothing in this act shall be construed as superseding or repealing any provision of law requiring any matter to be submitted to the vote of the electors or taxpayers, or permitting the city council to so submit any matter or question." That savings clause did not create referendum authority; it confirmed that other state laws controlled. The Optional City Government Law neither created referendum power nor delegated to a city council the freedom to invent referendums by charter.

The legitimate sources of referendum authority in 1998 included sections 23 and 24 of the Municipal Home Rule Law, which provide for mandatory referendums on certain local laws and permissive referendums on petition. Other state statutes authorize referendums on specific topics (bond issues, dissolution proposals, certain land transactions). A city wanting to hold a referendum needed to point to one of those authorizations, not to a charter provision that purported to grant general authority.

The opinion concluded that the Auburn charter provision was invalid as written. The city's referendum authority was limited to whatever was specifically authorized by State law.

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.

Common questions

Why can't a local government just decide to hold a referendum?

Because of a longstanding New York rule that referendums require specific State legislative authorization. The reasoning has constitutional and structural roots: local governments are creatures of the State, and the State sets the rules for when local power is exercised by direct vote of the people. Allowing local governments to invent referendum mechanisms by charter or local law would let them bypass the legislative process the State established.

Doesn't home rule give local governments broad authority?

Home rule is broad on substantive policy but does not extend to setting up a referendum framework. The State's referendum-authorization statutes (Municipal Home Rule Law §§ 23, 24, and topic-specific statutes elsewhere) are themselves the home-rule-compatible structure for direct democracy. A city cannot use home rule to enlarge that structure.

Was Auburn doing something wrong by relying on the charter provision?

Until this opinion, the city was operating under a presumption that its charter said what it said. The opinion identified the structural problem (no underlying State authorization). The practical consequence is that any referendum Auburn might have held under that charter provision (other than a referendum on a topic specifically authorized by State law) was vulnerable to legal challenge.

What is the Optional City Government Law?

A 1914 State statute that allowed cities to choose among several plans of city government (council-manager, commission, mayor-council, and variants). The Legislature repealed it in 1939. Cities that had adopted plans under it kept those plans in operation, but no new adoptions occurred after 1939. Auburn was one of the cities operating under a charter rooted in the Optional City Government Law.

What authorities are valid sources of referendum power?

Municipal Home Rule Law § 23 provides for mandatory referendums on local laws on certain enumerated subjects (e.g., changing the city's form of government). Municipal Home Rule Law § 24 provides for permissive referendums on petition. Many topic-specific statutes (Local Finance Law for bond questions, Village Law for village dissolution, General City Law for certain charter amendments) authorize specific referendums. Together those statutes are the referendum framework for New York local governments.

Could Auburn amend its charter to provide for a referendum on any subject?

Not effectively. A new charter amendment that purported to authorize general referendums would have the same problem as the existing provision. The State legislative authorization is a prerequisite that a city cannot give itself.

Background and statutory framework

The opinion rests on a single, simple principle stated three times in three prior AG opinions: a local government may not hold a referendum without a specific State authorization. The principle is structural; it is not in any one statute. It emerges from the way New York organizes local government as a State delegation. The State decides when local actions are subject to direct democratic review.

The Optional City Government Law (L 1914 Ch 444) was a major mid-Progressive Era statute that gave cities a menu of governance structures. Its repeal in 1939 (L 1939 Ch 765) closed the menu but grandfathered existing plans. The Article I § 10 savings clause is a textual confirmation that the Optional City Government Law itself did not create referendum authority.

Municipal Home Rule Law § 23 (mandatory referendums) and § 24 (permissive referendums) are the current general-purpose referendum statutes for local laws. They specify the subjects on which a referendum must or may be held. They are not blank checks; they are limited authorizations.

Citations

• Municipal Home Rule Law § 23 (mandatory referendums on certain local laws).
• Municipal Home Rule Law § 24 (permissive referendums on petition).
• L 1939 Ch 765 (repeal of Optional City Government Law).
• L 1914 Ch 444, Art I, § 10 (savings clause preserving other-law referendum authority).
• Op Atty Gen (Inf) No. 91-19 (local government may not hold referendum without State authorization).
• Op Atty Gen (Inf) No. 90-24 (same).
• Op Atty Gen (Inf) No. 85-1 (same).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-5_pw.pdf

Original opinion text

MUNICIPAL HOME RULE LAW §§ 23, 24; L 1939, CH 765; L 1914,
CH 444, ART I, § 10.
The provision of the charter of the City of Auburn
authorizing a referendum on the exercise of any power delegated
by charter or State law is invalid in that the referendum has not
been established by State law.

February 9, 1998
Michael F. McKeon, Esq.
Corporation Counsel
City of Auburn
Memorial City Hall
24 South Street
Auburn, NY 13021-3832

Informal Opinion
No. 98-5

Dear Mr. McKeon:
You have asked whether a provision of the city charter of
the City of Auburn is valid. The charter provision authorizes
the city council to submit to the voters of the city at any
general or special election any proposal authorized by the
charter or by other laws.
You have explained that the City of Auburn Charter was
originally enacted under the Optional City Government Law.
Although that law was repealed in 1939 (Chapter 765 of the Laws
of 1939) any plan adopted by a city under the Optional City
Government Law remains in force until it is repealed or succeeded
by local law.
It has long been established in this State that a local
government may not hold a referendum without a specific
authorization by the State Legislature. Op Atty Gen (Inf)
Nos. 91-19, 90-24, 85-1. We have not found any provision in the
Optional City Government Law that authorized the conduct of a
referendum. In fact, that law included a provision preserving
the authority to conduct a referendum under any other provision
of law.
Determination of questions by popular vote.
Nothing in this act shall be construed as
superseding or repealing any provision of law
requiring any matter to be submitted to the

2

vote of the electors or taxpayers, or
permitting the city council to so submit any
matter or question. L 1914, Ch 444, Art I,
§ 10.
Therefore, in that the Auburn City Charter provision
authorizing a referendum has not been established by State law,
it is invalid. The authority to conduct a referendum is
controlled by provisions of State law, such as sections 23 and 24
of the Municipal Home Rule Law providing that local laws relating
to certain topics are subject to either mandatory referenda or
referenda on petition.
We conclude that the provision of the charter of the City of
Auburn authorizing a referendum on the exercise of any power
delegated by charter or other State law is invalid in that it has
not been established by 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