Does a city charter amendment that guarantees every speaker at least five minutes of preliminary public comment at council meetings require a public referendum to pass?

Plain-English summary

Binghamton's Corporation Counsel asked the Attorney General about a proposed charter amendment that would require the City Council to give every person who wanted to speak at a Council meeting at least five minutes of comment time before the council took up the legislative agenda. The question was whether the amendment had to go to a public referendum under Municipal Home Rule Law § 23(2)(f), which mandates a referendum for any local law that "abolishes, transfers or curtails any power of an elective officer."

Attorney General Eliot Spitzer's office concluded that a referendum was required. The doctrine of legislative equivalency, articulated by the Court of Appeals in Gallagher v. Regan, 42 N.Y.2d 230 (1977), means that once a procedural rule is locked into the charter, the City Council can no longer amend it by simple resolution; it would need to follow the more demanding charter-amendment process (Municipal Home Rule Law §§ 20, 27). That additional procedural burden, combined with the practical risk that an unbounded comment period could be used by a small group to stall the legislative agenda, would meaningfully constrain the council's flexibility in running its meetings.

The AG also addressed whether the proposed amendment violated state law. It did not. Cities have home-rule authority over their own meetings (Municipal Home Rule Law § 10(1)(i)). The Open Meetings Law requires meetings to be open to the public, but it does not require public comment, and Public Officers Law § 110(2) expressly authorizes local laws that give the public greater access than the OML mandates.

Currency note

This opinion was issued in 2004. 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.

The Municipal Home Rule Law referendum provisions and the related case law have continued to evolve. Anyone considering a charter amendment that touches on legislative procedure should verify the current requirements and check for any superseding appellate authority.

Common questions

Q: What does Municipal Home Rule Law § 23(2)(f) do?
A: It requires a mandatory referendum when a local law "abolishes, transfers or curtails any power of an elective officer." That includes elected legislative bodies like a city council. Morin v. Foster, 45 N.Y.2d 287 (1978), applied the rule to a county legislature.

Q: Why doesn't every minor procedural rule trigger a referendum?
A: The AG has long recognized that not every transfer of administrative or ministerial power requires a referendum; the impact must be "substantial enough to bring it within the meaning and purpose of section 23(2)(f)." Op. Att'y Gen. (Inf.) No. 85-73. Otherwise government could not function.

Q: What is "legislative equivalency"?
A: The doctrine that "[t]he repeal or modif[ication of] a statute requires a legislative act of equal dignity and import." Gallagher v. Regan, 42 N.Y.2d 230, 234 (1977). A rule placed in the charter can be amended only by another charter amendment, not by a simple council resolution.

Q: What is a "second class city" in New York?
A: Under Second Class Cities Law § 4, a second class city is a city that on December 31, 1923, had a 1920 federal population of at least 50,000 but less than 175,000. Binghamton qualifies. Second class cities retain home-rule authority to supersede provisions of the Second Class Cities Law within their home-rule powers.

Q: Does the Open Meetings Law require public comment?
A: No. Public Officers Law § 103(a) requires meetings of public bodies to be open to the public. DeSantis v. City of Jamestown held that the OML does not require an opportunity for public debate, only that proceedings be open to observation. Section 110(2) lets local laws grant more public access than OML requires.

Q: Could Binghamton adopt a five-minute comment rule without a referendum?
A: Yes, but only as a procedural rule of the City Council itself, not as a charter amendment. The Council's own Rules and Procedures (§ 2-39(13)) allow a simple-majority change after notice. Placing the same rule in the charter elevates its procedural status, which is what triggers § 23(2)(f).

Background and statutory framework

Three statutory regimes intersect. First, Municipal Home Rule Law § 10(1)(i) gives cities broad home rule over their "property, affairs or government," including meeting procedures. Second, § 23(2)(f) mandates a referendum for charter amendments that abolish, transfer, or curtail elective-officer power. Third, Public Officers Law § 103(a) sets the floor for public access to meetings, with § 110(2) permitting local laws to exceed that floor.

The AG's analytical move was to recognize that "curtailment" can be subtle. The proposed rule does not directly strip the council of power. But by locking the rule into the charter, the City Council loses the flexibility to manage public-comment time on a meeting-by-meeting basis. An unbounded preliminary comment period could delay or stall legislative action, and the rule could only be changed through the higher-friction charter amendment process. That combination crossed the line from "delegation of ministerial tasks" to "substantial curtailment."

The opinion is careful to distinguish ordinary procedural rules from charter-locked ones. Adopting the same comment rule by resolution would not trigger a referendum, because resolutions are revisable by the council at will. The referendum requirement attaches to the legislative-equivalency effect of putting the rule in the charter, not to the substance of the rule.

Citations and references

Statutes:

• Municipal Home Rule Law §§ 10(1)(i), 20, 23, 27, 37
• Municipal Home Rule Law § 23(2)(f) (mandatory referendum)
• Public Officers Law § 103(a) (Open Meetings)
• Public Officers Law § 110(2) (local laws may exceed OML access)
• Second Class Cities Law §§ 4, 34

Cases:

• Morin v. Foster, 45 N.Y.2d 287 (1978)
• Gallagher v. Regan, 42 N.Y.2d 230 (1977)
• New York Pub. Interest Research Group v. Dinkins, 83 N.Y.2d 377 (1994)
• Biffer v. City of Saratoga Springs, 279 A.D.2d 749 (3d Dep't 2001)
• DeSantis v. City of Jamestown, 193 Misc. 2d 197 (Sup. Ct. 2002)
• Doherty v. Sanvidge, 58 Misc. 2d 347 (Sup. Ct. 1964)
• Brittain v. Village of Liverpool, 172 Misc. 2d 201 (Sup. Ct. 1997)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2004-9_pw.pdf

Original opinion text

MUNICIPAL HOME RULE LAW §§ 10(1)(i), 20, 23, 27, 37; PUBLIC OFFICERS LAW §§ 103(a), 110(2); SECOND CLASS CITIES LAW §§ 4, 34.

A proposed amendment to the Binghamton City Charter, which would require the City Council to give every person who wished to speak at a Council meeting at least five minutes to do so before consideration of the legislative agenda, would be subject to the mandatory referendum requirement of section 23 of the Municipal Home Rule Law.

October 4, 2004

Gregory J. Poland, Esq.
Corporation Counsel
City of Binghamton
City Hall
Government Plaza
Binghamton, New York 13901

Informal Opinion
No. 2004-9

Dear Mr. Poland:

You have asked whether a proposed amendment to the City Charter of the City of Binghamton relating to public comment at City Council meetings is subject to the referendum requirement of section 23 of the Municipal Home Rule Law. The proposed charter amendment would require the City Council to grant every individual who wished to speak at one of its meetings at least five minutes to do so prior to the City Council's consideration of its legislative agenda.

You have informed us that the City of Binghamton is a city organized under the Second Class Cities Law and remains governed by section 34 of the same, which provides that "[t]he common council shall determine the rules of its own proceedings." According to the Rules and Procedures of the Binghamton City Council, a simple majority of the City Council has the power to alter, suspend or rescind a rule of procedure, so long as notice of the motion to do so was given at the previous meeting or consideration of the motion receives unanimous consent of those present. Binghamton City Council Rules and Procedures § 2-39(13) (2004).

At issue here is whether the proposed amendment to the City Charter would curtail the powers of the City Council, thereby triggering the requirement for a mandatory referendum pursuant to section 23(2)(f) of the Municipal Home Rule Law. This provision stipulates that, except as otherwise provided, "a local law shall be subject to mandatory referendum if it . . . [a]bolishes, transfers or curtails any power of an elective officer." It is well-accepted that this provision applies to local laws that curtail the powers of an elective body, such as the City's Common Council. See, e.g., Morin v. Foster, 45 N.Y.2d 287 (1978) (county legislature); Doherty v. Sanvidge, 58 Misc. 2d 347, 352 (Sup. Ct. 1964) (city council); Op. Att'y Gen. (Inf.) No. 85-41 (stating principle).

While section 23(2)(f) "has been strictly construed by the courts," Op. Att'y Gen. (Inf.) No. 95-8, and the prior opinions of this office, see, e.g., Op. Att'y Gen. (Inf.) No. 90-47 ; 1976 Op. Att'y Gen. (Inf.) 114, prior opinions of both this office and the Office of the State Comptroller have concluded that a local law, while affecting an elected official's powers, may not have an impact that is substantial enough to bring it within the meaning and purpose of section 23(2)(f). See Op. Att'y Gen. (Inf.) No. 85-73 (concluding that referendum requirement for local laws that "transfer any power" of elected officials was not intended to include all delegations of administrative and ministerial tasks); Op. State Compt. No. 91-43 (distinguishing for purposes of local law referendum requirement transfer of town clerk's statutory duties over auditing of town claims from delegation of certain ministerial pre-audit steps). In particular, we have recognized the concern that subjecting "any transfer of administrative powers, no matter how menial" to the referendum requirement "could result in the paralysis of government and would not serve the public interest." Op. Att'y Gen. (Inf.) No. 85-73.

For the reasons explained below, we believe that the proposed amendment to the City Charter would affect the City Council's powers in a manner which requires a mandatory referendum for its enactment. New York adheres to the doctrine of legislative equivalency, under which the "repeal or modif[ication of] a statute requires a legislative act of equal dignity and import." Gallagher v. Regan, 42 N.Y.2d 230, 234 (1977); see also New York Pub. Interest Research Group v. Dinkins, 83 N.Y.2d 377, 385 (1994) (local law amending the city charter cannot be amended by resolution). Under this legal principle, were the proposed amendment to the Binghamton City Charter enacted, the City Council would be powerless to modify it except by further amendment to the City Charter.

Significantly, such further amendment would be subject to numerous additional procedural hurdles beyond those applicable to the City Council's Rules and Procedures. While the City Council could alter its own procedural rules on a simple majority vote, upon either notice or unanimous consent of those present, amendment of a local law or charter provision generally requires prior notice to the local legislators, a public hearing, approval by the local chief executive officer, filing and publication of the amendment. See Municipal Home Rule Law § 20(1),(4),(5); id. § 27. It is thus apparent that the City Council would face a greater burden in modifying or repealing the proposed amendment than it would if the comment rule were instead adopted as part of the Council's own Rules and Procedures.

What is less clear is whether the proposed rule providing for public comment would itself curtail the City Council's powers in a meaningful way. On the one hand, permitting preliminary public comment at Council Meetings fosters responsible governance because it allows the council members to hear the views of their constituents before taking legislative action. Under ordinary circumstances, we presume that there would be little need for the council members to limit public comment, and thus adoption of the proposed rule as a local law would have no practical effect on the City Council's ability to consider legislation or otherwise proceed with its meetings in an orderly manner. But to the extent the proposed amendment permits an unbounded preliminary public comment period at City Council meetings, it has the potential of allowing a relatively small group of citizens to delay significantly the Council's consideration of its legislative agenda. Adopting such a rule as a local law would, under those circumstances, substantially diminish the City Council's present flexibility to control the conduct of its meetings so as to allow for legislative action. For this reason, coupled with the additional procedural steps involved in modifying or repealing the proposed amendment, we conclude that the proposed amendment would curtail the City Council's powers within the meaning of section 23(2)(f) and would therefore be subject to the mandatory referendum requirement of that provision.

You have also asked whether the proposed charter amendment violates any provisions of State law. We believe the subject matter of the proposed amendment falls within the City's home rule powers, since it relates to the City's "property, affairs or government." See Municipal Home Rule Law § 10(1)(i). Nor would the provision conflict with the Open Meetings Law, though it would go beyond what that law requires. See Public Officers Law § 103(a) (mandating that meetings of public bodies be open to the public, without requiring public participation); id. § 110(2) (permitting local laws or charters to provide for greater public access than that required by the Open Meetings Law); DeSantis v. City of Jamestown, 193 Misc. 2d 197, 199 (Sup. Ct. 2002) (Open Meetings Law does not require that public be given opportunity for public debate, but only that proceedings be open to observation by the public).

The Attorney General issues formal opinions only to officers and departments of State government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

LAURA ETLINGER
Assistant Solicitor General
In Charge of Opinions

By: _____
Gregory Klass
Assistant Solicitor General