When the appointing members of a public benefit corporation deadlock on filling a vacant board seat, is there a State-law remedy, and can the agency still take action with the vacancy unfilled?

Plain-English summary

The Love Canal Area Revitalization Agency is a public benefit corporation established under General Municipal Law § 950 to serve Niagara Falls and the Town of Wheatfield. Its nine-member board is structured this way: three members appointed by the Niagara Falls mayor (with city council concurrence), three appointed by the Wheatfield town supervisor (with town board concurrence), and three community representatives appointed by the six members already on the board.

A vacancy opened in one of the community representative positions. The six appointing-officer members deadlocked on the appointment. A State Supreme Court decision had previously confirmed that only those six members can appoint community representatives, so the deadlock could not be broken by the remaining community-representative members voting.

Counsel for the Agency asked whether any State law provided a remedy for the deadlock, and whether the Agency could continue to function with the vacancy.

The AG said there was no statutory remedy for the deadlock, and the Agency could continue to function.

On the deadlock: Public Officers Law § 42(5) gives the Governor discretion to call a special election to fill a vacancy in an elective office when a board cannot make a temporary appointment because of a tie or other reason. That provision applies only to elective offices. There is no comparable provision for appointive offices. The Legislature has not provided a mechanism to break appointive-office deadlocks.

On the Agency's ability to function: General Construction Law § 41 supplies default quorum and voting rules for boards of three or more members where the enabling statute is silent. The Love Canal Agency's enabling legislation does not include quorum and voting requirements specific to the Agency. Section 41 applies. Under § 41, a majority of the whole board's membership constitutes a quorum, and a majority of the whole membership's affirmative votes can act. With a single vacancy out of nine seats, the Agency still has eight members. A quorum of five (majority of nine) is possible, and any action requires five affirmative votes (majority of nine). The Agency can act so long as it meets those thresholds.

The opinion ended with a caveat: while a single-vacancy impasse on community representation does not paralyze the Agency, a prolonged impasse or a failure to appoint multiple community representatives could "arguably defeat the legislative intent to represent on the board community interests, and might possibly lead to successful challenges of board action." The opinion did not say a court would invalidate Agency action in that scenario; it flagged the litigation risk if the impasse persisted.

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 doesn't General Construction Law § 41 break the deadlock?

Section 41 sets default quorum and voting rules for boards generally. It does not redistribute appointment authority. The deadlock is between the six appointing-officer members on a community-representative appointment; § 41 says only that a board may act if quorum and majority thresholds are met. It does not authorize the remaining members to make the appointment.

Could the Governor step in?

Under Public Officers Law § 42(5), the Governor can call a special election to fill a vacancy in an elective office in a defined set of impasse scenarios. The community-representative position is appointive, not elective. The provision does not apply.

Could the Legislature have written a deadlock-breaking mechanism into the enabling statute?

Yes. Many enabling statutes for public benefit corporations and industrial development agencies do include such mechanisms (e.g., reversion of appointment authority to a higher official, automatic appointment by a default body). The Love Canal Agency's enabling legislation simply does not. The AG could not invent one.

Can the Agency take significant action with a vacancy?

Yes, under General Construction Law § 41, provided the quorum and majority thresholds are met. Five affirmative votes out of nine total seats are required for action, regardless of whether the ninth seat is filled. The Agency's authority is not suspended by the vacancy.

What is the risk if the impasse persists?

The AG flagged that a prolonged impasse might support a legal challenge to Agency action, on the theory that the Legislature intended three community representatives to ensure community input. The opinion did not predict how a court would rule; it noted the risk as a practical concern. A vacancy of months might be tolerable; a vacancy of years on multiple seats could be more problematic.

What practical fixes does the opinion suggest?

The opinion does not suggest any. The legal fix (deadlock-breaking statute) requires legislative action. The practical fix (negotiating an appointment) requires the appointing officers to reach agreement. The AG was confined to interpreting the law as written.

Background and statutory framework

The Love Canal Area Revitalization Agency was created by the State Legislature under General Municipal Law § 950 as an industrial development agency for the Love Canal area in the City of Niagara Falls and the Town of Wheatfield. The Agency's role was to clean up and redevelop the Love Canal neighborhood, a site of one of the most consequential environmental disasters in U.S. history.

The Agency board's composition was deliberately split. The mayor's three appointees and the supervisor's three appointees represented the two affected local governments; the three community representatives represented the local population (including former Love Canal residents who had been relocated). The structure required cross-government consensus and community input on Agency decisions.

General Construction Law § 41 is the default quorum and voting rule for New York boards. It applies where the enabling statute does not specify. The provision states that a quorum is a majority of the whole number of members, and a majority of the whole number is required to act.

Public Officers Law § 42(5) is the gubernatorial special-election authority for elective offices stuck in tie or impasse situations. The opinion cited it specifically to show that the Legislature knew how to provide for impasse breaking when it wanted to, and the absence of a parallel provision for appointive offices reflected a deliberate choice.

The opinion also referenced General Municipal Law § 856(3) and Op Atty Gen (Inf) No. 93-41 for the general proposition that an agency board with a vacancy can still function. § 856(3) is in the general industrial development agency statute; the 1993 informal opinion previously addressed the same point.

Citations

• General Construction Law § 41 (default quorum and voting rule for boards).
• General Municipal Law § 950 (Love Canal Area Revitalization Agency).
• General Municipal Law § 950(1) (Agency as public benefit corporation).
• General Municipal Law § 950(4) (Board composition: three mayoral, three supervisor, three community).
• General Municipal Law § 856(3) (general IDA quorum analog).
• Public Officers Law § 42(5) (gubernatorial special-election authority for elective office impasse).
• Op Atty Gen (Inf) No. 93-41 (board with vacancy may still function).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-9_pw.pdf

Original opinion text

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

GENERAL CONSTRUCTION LAW § 41; GENERAL MUNICIPAL LAW § 950;
PUBLIC OFFICERS LAW § 42(5).

There is no provision in State law which provides a remedy
to the Love Canal Area Revitalization Agency in the event there
is a deadlock in filling a vacancy on the board. The Agency may
act even with the vacancy provided the quorum and majority
requirements of section 41 of the General Construction Law have
been met.

February 19, 1998

Kathleen Wojtaszek-Gariano, Esq. Informal Opinion
Counsel No. 98-9
Love Canal Area
Revitalization Agency
2768 Niagara Falls Boulevard
Niagara Falls, NY 14304

Dear Ms. Wojtaszek-Gariano:

I have received your September 2, 1997 letter regarding the
appointment of community representatives on the board of the Love
Canal Area Revitalization Agency. Specifically, you have asked,
in the event of a tie vote in filling a vacancy in the position
of a community board member, whether any remedies are available
under State law to fill the vacancy. Also, you have asked
whether the Agency may take action when a vacancy exists on the
board.

The Love Canal Area Revitalization Agency has been
established by State law as an industrial development agency,
constituting a public benefit corporation, for the benefit of the
City of Niagara Falls and the Town of Wheatfield. General
Municipal Law § 950(1). Under the enabling legislation for the
Agency, three members of the board are appointed by the mayor of
the City of Niagara Falls with the concurrence of the city
council. Id., § 950(4). Three members are appointed by the town
supervisor of the Town of Wheatfield with the concurrence of the
town board. Id. The three remaining members, who are
representatives of the area served by the Agency, are appointed
by the members of the board appointed by the mayor and town
supervisor. Id.

You have forwarded to me a decision of the State Supreme
Court holding that only the six members of the board appointed by

2

officials of the City of Niagara Falls and the Town of Wheatfield
may appoint the community representatives on the board. The
opinion of the court states that in the event of a tie vote in
filling a vacancy in the position of community member, there is
no provision in the law for the remaining community board members
to vote to fill the vacancy.

We are not aware of any statutory remedy in the event of a
tie vote to fill an appointive office. We note that
section 42(5) of the Public Officers Law gives the Governor
discretion to call a special election to fill a vacancy in an
elective office where a board, because of a tie vote or for any
other reason, is unable to make a temporary appointment to fill
the office. There is no comparable provision for appointive
offices.

Generally, the existence of a vacancy on an agency's board
does not preclude the exercise of authority by the agency. In
the absence of quorum and voting requirements in the agency's
enabling legislation, the provisions of section 41 of the General
Construction Law would apply. See also, section 856(3) of the
General Municipal Law discussed in Op Atty Gen (Inf) No. 93-41.

The enabling legislation for the Love Canal Area
Revitalization Agency does not include quorum and voting
requirements. Thus, section 41 applies, and provided that a
quorum exists and the requisite affirmative votes for a proposal
are cast, as provided in section 41, action can be taken. We
note, however, that the Legislature intended that three members
of the board represent the area served by the Agency. While the
tie vote has prevented appointment of only one community
representative, a prolonged impasse or failure to appoint
additional community representatives arguably defeats the
legislative intent to represent on the board community interests,
and might possibly lead to successful challenges of board action.

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