Can a New York county charter require referendums beyond what the County Charter Law specifies, and how does that interact with a county administrative code?

Plain-English summary

The Sullivan County Attorney asked the AG two questions about chartered counties.

Question 1: Can a county charter include referendum requirements beyond what Article 4 of the Municipal Home Rule Law (the County Charter Law) currently authorizes?

The default rule, restated: referendums in New York must be specifically authorized by State law. The Court of Appeals has held this since Mills v Sweeney, 219 NY 213 (1916) and Matter of McCabe v Voorhis, 243 NY 401 (1926). Government by representation is the rule; direct action by voters is the exception. Section 34(4) of the Municipal Home Rule Law (part of the County Charter Law) sets the procedure for permissive referendums on amendments that affect elective offices, voting power, removal procedures, transfer of powers, or the form or composition of the county legislature (this implements NY Const, Art IX, § 1(h)(2)).

But some county charters carry referendum provisions that predate the current County Charter Law. The savings clause in NY Const, Art IX, § 3(b), preserves pre-existing valid provisions of State legislation and local legislation, leaving them in force until repealed, amended, or superseded. So if a charter referendum provision was validly adopted under a prior version of the Constitution or State law, it remains valid under the current scheme. The AG cited Op Atty Gen (Inf) No. 99-4 for a Nassau County Charter provision saved by the same mechanism. So a county charter may include referendum requirements that go beyond § 34(4) if those requirements were authorized at the time of adoption and preserved by Article IX.

Question 2: Do the County Charter Law's referendum requirements (§ 34(4)) apply to a county administrative code?

It depends on the code's content. The County Charter Law defines what a county charter is: under § 33(2), a county charter "shall set forth the structure of the county government and the manner in which it is to function" and may provide for the appointment or selection of county officers. § 33(3) lists additional charter-required provisions.

If an administrative code contains provisions that meet the § 33 definition (structural rules about county government), the code functions as part of the charter, and the County Charter Law referendum requirements (including § 34(4)) apply when those provisions are amended.

If the administrative code is a compilation of substantive local laws (regulations on health and safety, business licensing, environmental controls, etc.) passed by the county legislature under Municipal Home Rule Law § 10, then it is not a charter. Local laws have their own referendum requirements (Municipal Home Rule Law §§ 23 and 24), which apply instead.

So the answer is content-driven. A county compiling rules into an "administrative code" cannot evade either the charter referendum requirements or the local-law referendum requirements by labeling the code differently. The function and content of the provisions determines which set of referendum rules applies.

Currency note

This opinion was issued in 1999. 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 are pre-County-Charter-Law referendum provisions still valid?

Because the State Constitution's Article IX includes a savings clause (§ 3(b)). New constitutional provisions do not automatically wipe out older valid provisions of State or local law. Provisions enacted under the old framework remain in force until repealed, amended, or superseded. So charter referendum provisions adopted decades ago (some dating to mid-twentieth-century pre-County-Charter-Law statutes) can still be operative today.

What is "the County Charter Law" specifically?

Article 4 of the Municipal Home Rule Law, enacted as the local-government framework following the 1964 home rule constitutional amendments. The Charter Law sets the procedure for adopting, amending, and repealing county charters and includes the referendum requirements in § 34(4).

How can a county tell whether its admin code is a "charter" or a "local law"?

By looking at what the code does. If the code sets up the structure of county government (composition of the legislature, executive functions, departments, elective offices), it is functioning as a charter. If the code contains substantive rules of conduct (zoning, health, business licensing), it is functioning as a compilation of local laws. The County Charter Law § 33 definitions are the test.

Can an administrative code include both kinds of provisions?

Yes, and that is exactly what creates the question this opinion answers. The code can have some structural provisions (charter character) and some substantive provisions (local-law character). When the question arises which referendum rule applies to an amendment, the county has to look at which kind of provision is being amended.

Why does this matter for a Sullivan County practitioner?

Because misapplying the referendum rules can invalidate an amendment. If a structural change is made without § 34(4)'s permissive referendum machinery, an amendment that affects an elective office may be vulnerable to challenge. Conversely, applying the rigorous § 34(4) referendum to a routine local-law amendment would impose unnecessary procedural burdens.

Background and statutory framework

Constitutional framework. NY Const, Art IX, § 1(h) requires the State Legislature to empower counties to adopt charters. § 1(h)(2) specifies the kinds of charter amendments subject to permissive referendum (elective office, voting power, removal, transfer of powers, form of legislative body). § 3(b) is the savings clause preserving pre-existing valid provisions.

Statutory framework. Article 4 of the Municipal Home Rule Law (§§ 33-34 and following) is the County Charter Law. § 33 defines a county charter. § 34(4) sets the procedure for permissive referendum on charter amendments. Municipal Home Rule Law § 10 is the general home-rule grant authorizing local laws. §§ 23 and 24 set referendum requirements for local laws.

Case law. Mills v Sweeney and Matter of McCabe v Voorhis establish the foundational rule that referendums require State authorization.

Prior AG opinion. Op Atty Gen (Inf) No. 99-4 addressed a Nassau County Charter provision preserved by Article IX's savings clause.

Citations

• NY Const, Art IX, § 1(h) (Legislature to authorize county charters); § 1(h)(2) (permissive referendum triggers); § 3(b) (savings clause).
• Municipal Home Rule Law § 10 (general home rule grant); § 23, § 24 (local-law referendum requirements); § 33 (definition of county charter); § 33(2), § 33(3) (required charter provisions); § 34(4) (permissive referendum for charter amendments).
• Mills v Sweeney, 219 NY 213 (1916); Matter of McCabe v Voorhis, 243 NY 401 (1926) (referenda require State authorization).
• Op Atty Gen (Inf) No. 99-4; Op Atty Gen (Inf) No. 90-24; 1985 Op Atty Gen (Inf) 57; 1981 Op Atty Gen (Inf) 154 (prior AG opinions on referendum authorization).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_99-9_pw.pdf

Original opinion text

Opn. No. 99-9
NY CONST, ART IX, §§ 1(h), 3(b); MUNICIPAL HOME RULE LAW §§10, 23, 24, 33, 34(4).
A referendum must be authorized by State law. Some county charters include referendum provisions
that were authorized by State law prior to enactment of the County Charter Law. The content of a county
administrative code will determine whether it should be viewed as a part of the county charter for
purposes of applying provisions of the County Charter Law.
February 18, 1999
Ira J. Cohen, Esq.
County Attorney
County of Sullivan
P. O. Box 5012
Monticello, NY 12701

Informal Opinion
No. 99-9

Dear Mr. Cohen:
You have raised two questions relating to counties with a charter form of government. First, you
have requested our opinion whether a county charter can include additional referendum requirements
beyond those currently authorized by Article 4 of the Municipal Home Rule Law, referred to as the
County Charter Law.
It has long been established that a municipality may conduct a referendum only if authorized by
State law. OpAttyGen (Inf) No. 90-24; 1985 Op Atty Gen (Inf) 57; 1981 OpAttyGen (Inf) 154.
Government by representation is the general rule and direct action by the people must be authorized
specifically by State law. Ibid.; Matter of McCabe v Voorhis, 243 NY 401 (1926); Mills v Sweeney, 219
NY 213 (1916). For example, certain local laws are subject to either a mandatory referendum or
referendum on petition under sections 23 and 24 of the Municipal Home Rule Law. An amendment of a
county charter which abolishes or creates an elective office; changes the voting or veto power or method
of removing an elective county officer during his or her term of office; abolishes, curtails or transfers to
another county officer any power of an elective county officer; or changes the form or composition of
the county legislative body is subject to a permissive referendum. NY Const, Art IX, § 1(h)(2). This
provision is implemented by section 34(4) of the Municipal Home Rule Law, which defines the
procedure for conducting the permissive referendum. Section 34(4) is part of Article 4 of the Municipal
Home Rule Law, known as the County Charter Law. The County Charter Law establishes a procedure
for local enactment of county charters. This authorization by the State Legislature is required by New
York Constitution, Article IX, § 1(h).
Therefore, referendum requirements must be authorized by State law. The County Charter Law
contains specific referendum requirements.
Some county charter referendum provisions, however, derive from other sources and are different
from those in the County Charter Law. A provision of a county's charter authorizing a referendum may
have been authorized by a prior version of the State Constitution or prior State law. The current home
rule article of the Constitution, which mandates that the Legislature empower counties to adopt county
charters (NY Const, Art IX, §1[h]), includes a savings clause which preserves pre-existing valid
provisions of acts of the State Legislature and of local legislation and provides that they remain in force
until repealed, amended or superseded. NY Const, Art IX, § 3(b). The savings clause preserves validly
adopted charter provisions which remained in force when the current savings clause was enacted. See,
OpAttyGen (Inf) No. 99-4, which relates to a provision of the Nassau County Charter derived from a
prior constitutional provision and saved by subsequent provisions of the Constitution up to and
including current Article IX. Therefore, in answer to your question, a referendum must be authorized by
State law. Some county charters include referendum provisions that were authorized by State law prior
to enactment of the County Charter Law and have been preserved by Article IX of the State
Constitution.
Your second question is whether the referendum requirements of section 34(4) of the Municipal
Home Rule Law apply to a county administrative code. As discussed above, section 34(4) is part of the
County Charter Law and implements referendum requirements set forth in the Constitution for
amending a county charter. Determination of whether section 34(4) applies to an administrative code
will depend upon the content of the code. If the code contains provisions falling within the definition by
State law of a county charter, section 34(4) will apply. Under section 33 of the Municipal Home Rule
Law, a county charter
shall set forth the structure of the county government and the manner in which it is to
function. Such charter may provide for the appointment of any county officers or their
selection by any method of nomination and election, provided that there shall be an elective
board of supervisors, the members of which shall be deemed county officers, which shall
determine county policies and exercise such other functions as may be assigned to it.
Municipal Home Rule Law § 33(2).
The County Charter Law goes on to delineate other provisions that must be included in a county charter.
Id., § 33(3). Therefore, if an administrative code, under the County Charter Law, by its provisions is a
charter, provisions of State law and the Constitution applicable to charters, including the referendum
provisions of section 34(4), will apply to the code.
On the other hand, an administrative code could constitute a compilation of local laws passed by
the county legislative body under section 10 of the Municipal Home Rule Law, which do not relate to
the structure and function of county government. These local laws might include, for example,
regulations to protect the health and safety of persons and property in the county and other subjects
authorized by the considerable delegation of local law power under section 10 of the Municipal Home
Rule Law. The referendum requirements applicable to local laws (Municipal Home Rule Law §§23, 24)
would apply to these local laws rather than referendum requirements established under the County
Charter Law.
We conclude that the content of a county administrative code will determine whether it should be
viewed as a part of the county charter for purposes of applying provisions of the County Charter Law.
Provisions of county charters validly enacted under prior provisions of law may include different
referendum requirements from those in the current County Charter Law and additional referendum
requirements.
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