In a New York county that hasn't adopted a charter, can the board of supervisors appoint a county manager to a four-year term when most supervisors only serve two-year terms?

Plain-English summary

Seneca County had not adopted a charter form of government. It still used the traditional county board of supervisors model, where each town supervisor sits on the county board, and most supervisors held two-year terms. The county had created a county manager position by local law and given the manager a four-year term. The County Attorney wanted to know if this was legal: a board with mostly two-year members appointing a four-year manager appears to let one slate of supervisors lock in their pick past the next election.

The AG's office concluded the board could not do that. New York common law has a long-standing "term limits rule" or "successor board doctrine": a governing body acting in its governmental (not proprietary) capacity cannot tie the hands of the next board by making long-term commitments. The rule traces to People ex rel. Devery v. Coler, 173 N.Y. 103 (1903), and the Court of Appeals reaffirmed in Morin v. Foster, 45 N.Y.2d 287 (1978), that appointing a county manager is "precisely and unmistakably a governmental matter."

There are two recognized escapes from the rule: a clear state statute authorizing the longer term, or a county charter. Seneca County had neither. The general home-rule authority under Municipal Home Rule Law § 10(1)(ii)(a)(1) and the appointment-power language in County Law § 400(4)(a) were not specific enough to override the rule. The AG distinguished Morin, where the four-year manager term survived because Monroe County had a charter and the original four-year term was specifically authorized by state law. Seneca County could not bootstrap itself into the same position with an ordinary local law.

The AG also noted in a footnote a separate procedural obstacle. Even if the board had the power, a local law that lets one board bind a successor on appointment matters "curtails" the elective successors' powers, triggering the mandatory referendum requirement of Municipal Home Rule Law § 23(2)(f). Without that referendum, the local law would be invalid. The de facto officer doctrine would still protect the validity of acts the county manager had taken while serving under the invalid law.

Currency note

This opinion was issued in 2005. 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 successor-board doctrine in New York continues to be developed through later cases, and several counties have adopted charters or charter amendments since 2005 that change the analysis for their specific situations. A county considering a county-manager term question today should verify the current state of the law and check whether the county has since adopted a charter.

Common questions

Q: What is the "term limits rule" or "successor board doctrine"?
A: It's a common-law principle that a governing body, when acting in its legislative or governmental capacity, cannot bind a successor body through long-term commitments. The rationale is that elected officials must transmit their power to their successors "unimpaired" so that newly elected representatives can exercise their own discretion.

Q: What's the difference between governmental and proprietary acts?
A: Governmental acts involve the exercise of public, sovereign-type powers (passing ordinances, appointing officers, regulatory decisions). Proprietary acts are business-like activities (running a parking garage, leasing surplus property). A board can bind successors on proprietary matters more easily than on governmental ones. In re Karedes v. Colella, 100 N.Y.2d 45 (2003), explains this distinction.

Q: How can a county lawfully appoint a county manager to a four-year term?
A: At the time of this opinion, two paths were established. The first was a clear state statute specifically authorizing the longer term, like Election Law § 3-202 (which lets a county legislature with two-year terms appoint election commissioners for four years). The second was a county charter providing for the longer term, as in Morin v. Foster. A general home-rule grant by itself was not sufficient.

Q: Why was Morin v. Foster not enough to validate Seneca County's setup?
A: Morin upheld a four-year county manager term in Monroe County, which had a charter and where the original four-year term was specifically provided by state law. The Court of Appeals was deciding a different question (whether amending the charter required a referendum), not whether the four-year term itself was valid in the first instance. The AG read Morin narrowly and concluded it did not authorize a non-charter county to do by ordinary local law what Monroe County did by charter.

Q: What about Hampton Heights, the Utica water-board case?
A: There, the court invalidated a local law that gave a four-year-term mayor the power to appoint five-year-term water-board members because the law had not been submitted to a mandatory referendum. Some read the case to imply that the law would have been valid had it gone to referendum. The AG noted that argument but declined to treat Hampton Heights as creating a new exception to the term-limits rule, because the court never reached the underlying authority question.

Q: If the appointing local law turns out to be invalid, are the manager's prior acts also invalid?
A: No. Under the de facto officer doctrine, the official acts of an officer appointed under an invalid local law are still valid as to third parties. Ontario v. Western Finger Lakes Solid Waste Mgmt. Authority, 167 A.D.2d 848 (4th Dep't 1990), is the standard cite. So contracts the manager signed, decisions she made, and records she kept are still enforceable even if the underlying appointment statute fails.

Q: Does the answer change if a majority of supervisors have four-year terms?
A: The opinion's reasoning ties the result to "a majority of the appointing supervisors." If a majority of the board has four-year terms, the manager's four-year term doesn't outlast the majority and the successor-board concern fades. The opinion notes that some towns within Seneca County had moved their supervisors' terms to four years after the original local law was enacted, but a majority of the board still had two-year terms.

Background and statutory framework

The common-law term-limits rule has been part of New York jurisprudence at least since People ex rel. Devery v. Coler, 173 N.Y. 103 (1903). The Court of Appeals stated the rule absolutely: "Nothing is better settled in our jurisprudence than that one legislature cannot bind the hands or limit the power of subsequent legislatures... [I]n matters that are strictly governmental the rule is absolute."

Applications have been consistent. In re Martin v. Hennessy, 147 A.D.2d 800 (3d Dep't 1989), held that a board of the Thruway Authority could not bind a future board to a specific executive director. In re Harrison Cent. School Dist. v. Nyquist, 59 A.D.2d 434 (3d Dep't 1977), held that a school board could not appoint an attorney for a term extending past the board's life. The AG's office has applied the rule the same way (1962 Op. Att'y Gen. (Inf.) 279; 1932 Op. Att'y Gen. (Inf.) 52).

Two exceptions developed. The first, well-established by 1970, is a clear statement by the State Legislature authorizing the longer term. In re Reese v. Lombard, 47 A.D.2d 327 (4th Dep't 1975), and Murphy v. Erie Co., 34 A.D.2d 295 (4th Dep't 1970), are examples. Election Law § 3-202 contains an express example: a two-year-term county legislative body is authorized to appoint election commissioners to four-year terms. Village Law § 3-308 contains another: a mayor with a two- or four-year term may appoint commissioners to five-year terms.

The second exception, introduced by Morin v. Foster, 45 N.Y.2d 287 (1978), is a county charter. Morin involved a Monroe County charter provision that granted the county legislature, elected for two-year terms, the power to appoint a county manager to a four-year term. The Court of Appeals signaled that the charter source mattered: "[I]n this case it is obvious that the appointment of a county manager is precisely and unmistakably a governmental matter within the [term limits] rule's purview and the Monroe County legislators would be limited by it but for the fact that the county charter specifically provides for appointment of the manager to a four-year term."

The AG's footnote about Municipal Home Rule Law § 23(2)(f) raises a separate dimension. A local law that "curtails any power of an elective officer" requires a mandatory referendum. Locking in a long-term appointee curtails the successor board's power to choose, so even if the board had authority to adopt the local law, the law would need referendum approval to take effect. Hampton Heights Dev. Corp. v. Board of Water Supply, City of Utica, 140 A.D.2d 958 (4th Dep't 1988), is the case most directly on point.

Citations and references

Statutes:

• County Law § 221 (county park commission terms)
• County Law § 400(4)(a) (board's authority to create appointive offices and fix their terms)
• Election Law § 3-202 (commissioners of elections, four-year terms)
• Municipal Home Rule Law § 10(1)(ii)(a)(1) (county home rule)
• Municipal Home Rule Law § 23(2)(f) (mandatory referendum to curtail elective-officer power)
• Village Law § 3-308 (mayor's appointment authority)

Cases:

• People ex rel. Devery v. Coler, 173 N.Y. 103 (1903)
• In re Martin v. Hennessy, 147 A.D.2d 800 (3d Dep't 1989)
• In re Harrison Cent. School Dist. v. Nyquist, 59 A.D.2d 434 (3d Dep't 1977)
• Morin v. Foster, 45 N.Y.2d 287 (1978)
• In re Karedes v. Colella, 100 N.Y.2d 45 (2003)
• In re Reese v. Lombard, 47 A.D.2d 327 (4th Dep't 1975)
• Murphy v. Erie Co., 34 A.D.2d 295 (4th Dep't 1970), aff'd, 28 N.Y.2d 80 (1971)
• Edsall v. Wheler, 29 A.D.2d 622 (4th Dep't 1967)
• Hampton Heights Dev. Corp. v. Board of Water Supply, City of Utica, 140 A.D.2d 958 (4th Dep't 1988)
• Ontario v. Western Finger Lakes Solid Waste Mgmt. Authority, 167 A.D.2d 848 (4th Dep't 1990)

Prior AG opinions:

• 1962 Op. Att'y Gen. (Inf.) 279
• 1932 Op. Att'y Gen. (Inf.) 52
• 1968 Op. Att'y Gen. (Inf.) 55
• Op. Att'y Gen. (Inf.) No. 90-50 (superseded to the extent inconsistent)
• Op. Att'y Gen. (Inf.) No. 96-18

State Comptroller opinions:

• Op. St. Compt. 91-11

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2005-4_pw.pdf

Original opinion text

COUNTY LAW §§ 221, 400(4)(a); ELECTION LAW § 3-202; MUNICIPAL HOME RULE LAW §§ 10(1)(ii)(a)(1), 23(2)(f); VILLAGE LAW § 3-308.

A county board of supervisors may not enact a local law creating for the position of county manager a term of office that is longer than that of a majority of the supervisors.

February 3, 2005

Steven J. Getman
County Attorney
Seneca County
County Office Building
One DiPronio Drive
Waterloo, New York 13165

Informal Opinion
No. 2005-4

Dear Mr. Getman:

You have inquired whether the Seneca County Board of Supervisors may enact a local law creating for the position of county manager a term of office that is longer than that of a majority of the supervisors. We are of the opinion that the Board may not.

Background

You have informed us that Seneca County has a traditional county board of supervisors and has not adopted a charter or other alternative form of county government. The County has, by local law, created the position of county manager. Pursuant to that local law, the county manager is to be appointed by the Board of Supervisors for a four-year term. A majority of the Board of Supervisors serves two-year terms. At the time the local law creating the position of county manager was enacted, all of the supervisors served two-year terms; subsequently, some towns altered their supervisors' terms to last four years.

Analysis

Common law has long recognized the principle that a governing board operating in its governmental or legislative capacity generally may not bind a successor board. A board operating in its proprietary capacity may bind successor boards. See In re Karedes v. Colella, 100 N.Y.2d 45, 50 (2003). See, e.g., People ex rel. Devery v. Coler, 173 N.Y. 103, 110 (1903) ("Nothing is better settled in our jurisprudence than that one legislature cannot bind the hands or limit the power of subsequent legislatures. . . . [I]n matters that are strictly governmental the rule is absolute." (citation omitted)). This principle has been applied to circumstances similar to those described in your inquiry. See, e.g., In re Martin v. Hennessy, 147 A.D.2d 800 (3d Dep't 1989) (board of Thruway Authority could not bind future board to appointment of executive director); In re Harrison Cent. School Dist. v. Nyquist, 59 A.D.2d 434 (3d Dep't 1977) (school board could not appoint attorney for term extending past board's life); see also 1962 Op. Att'y Gen. (Inf.) 279 (village board of trustees cannot appoint village attorney for term longer than life of appointing board); 1932 Op. Att'y Gen. (Inf.) 52 (county board of supervisors cannot appoint specified officers and employees for period longer than life of appointing board). The appointment of a county manager is "precisely and unmistakably a governmental matter." Morin v. Foster, 45 N.Y.2d 287, 293 (1978); see also People ex rel. Devery v. Coler, 173 N.Y. 103, 110 (1903) ("It is plain that . . . the determination of . . . the duration of [city officers'] terms is governmental in the highest degree.").

A board acting in its governmental capacity may, however, bind a future board when specifically authorized to do so by state statute or charter. See Morin v. Foster, 45 N.Y.2d at 293 (charter authorized appointment of county manager to four-year term). We are not aware of any state statute specifically granting the County Board this power with respect to the term of the county manager. We do not believe that either County Law § 400(4)(a), which authorizes the county board of supervisors to create by local law appointive offices and fix the terms of said offices, or Municipal Home Rule Law § 10(1)(ii)(a)(1), which authorizes a county to enact local legislation relating to the terms of office of its officers, is sufficiently specific to include a grant of this power. Section 10(1)(ii)(a)(1) provides that the local government of a county has the power to adopt and amend local laws, as long as they are not inconsistent with the provisions of the constitution or any general law, relating to the powers, duties, qualifications, number, mode of selection and removal, terms of office, compensation, hours of work, protection, and welfare and safety of its officers and employees. Compare id. with Election Law § 3-202 (authorizing county legislative body with two-year term to determine that appointed commissioners of elections will serve four-year terms) and Village Law § 3-308 (authorizing mayor with two- or four-year term to appoint board of commissioners' members for terms of up to five years); see also 1968 Op. Att'y Gen. (Inf.) 55 (interpreting County Law § 221, which authorizes county board of supervisors to appoint and determine terms of members of park commission, and concluding that board of supervisors cannot appoint county park commissioner for term extending beyond expiration of term for which board of supervisors was elected).

Thus, the County Board of Supervisors may enact a local law granting itself the power to bind successor boards only if there is a further exception to the "term limits rule," In re Karedes v. Colella, 100 N.Y.2d 45, 50 (2003). Although not free from doubt, we believe that under current common law, the better view is that the Board may not. To the extent Op. Att'y Gen. (Inf.) No. 90-50 indicates otherwise, it is superseded.

The rationale of the term limits rule is that "[e]lected officials must exercise legislative and governmental powers, within their own sound discretion, as the needs require. Ordinarily they may not so exercise their powers as to limit the same discretionary right of their successors to exercise that power and must transmit that power to their successors unimpaired." Morin, 45 N.Y.2d at 293 (citation omitted). For many years, the only exception to this rule was upon a clear statement to the contrary by the State Legislature. See, e.g., In re Reese v. Lombard, 47 A.D.2d 327, 331 (4th Dep't 1975) (Taylor Law); Murphy v. Erie Co., 34 A.D.2d 295, 298 (4th Dep't 1970), aff'd, 28 N.Y.2d 80 (1971) (State Legislature clearly expressed intent to grant Erie County legislature power to bind future county legislatures with respect to construction and operation of stadium); Edsall v. Wheler, 29 A.D.2d 622 (4th Dep't 1967).

In 1978, the Court of Appeals added the authority of charter law as a second basis for allowing a board to bind a future board. Morin v. Foster, 45 N.Y.2d at 293. Morin involved a local law amending a charter provision that granted the county legislature, elected for two-year terms, the "unique" power to bind its successors by appointing a county manager to a term of four years. Id. at 293. The charter granting this power was adopted by local law. Id. at 292. This seems to suggest that a local law may suffice to grant a legislative body the power to bind successor boards.

We are, however, wary of placing too much reliance on Morin as authority for the County Board of Supervisors to enact a local law creating a term longer than the tenure of a majority of the appointing supervisors. First, the Court clearly found the fact that the charter provided the authority for binding a successor board significant:

[I]n this case it is obvious that the appointment of a county manager is precisely and unmistakably a governmental matter within the [term limits] rule's purview and the Monroe County legislators would be limited by it but for the fact that the county charter specifically provides for appointment of the manager to a four-year term.

Id. at 293. The situation you describe is clearly distinguishable because Seneca County does not operate under a charter. Furthermore, the issue before the court in Morin was not the validity of the four-year term, a point noted both in the dissenting opinion, 45 N.Y.2d at 298, and by the court below, Morin v. Foster, 61 A.D.2d 1130 (4th Dep't), aff'd, 45 N.Y.2d 287 (1978). Rather, the Court was considering whether the local law adopted to amend the charter granting the power to appoint the county manager for a four-year term curtailed the power of an elective officer and thus was subject to a mandatory referendum. 45 N.Y.2d at 290. Moreover, as the briefs in that case pointed out, the charter's provision establishing a four-year term for the county manager was a provision initially adopted by the county pursuant to state law. Plaintiffs-Respondents' Brief at 32. Therefore, insofar as Morin can be read as approving the adoption of the local law authorizing the county manager's four-year term, it may be distinguishable on the grounds that the four-year term was initially specifically provided for by state law, and thus fell within a longstanding exception to the term limits rule. For these reasons, we do not believe that Morin provides conclusive authority for the proposition that the governing board of a non-charter county may adopt a local law authorizing it to bind successor boards.

Hampton Heights Dev. Corp. v. Board of Water Supply, City of Utica, 140 A.D.2d 958 (4th Dep't 1988), also appears to suggest that a local law may authorize a governing board to bind successor boards. In this case, the court invalidated the portion of a local law granting the city mayor, who served a four-year term, the power to appoint water board members who were to serve for five-year terms. Id. The relevant portion of the local law was invalidated because it had not been submitted to a referendum as required by the Municipal Home Rule Law. Id. That the law was invalidated on these grounds suggests that a local law that had been approved by referendum would be valid. The failure to submit the local law to referendum was, however, the argument advanced by the party challenging the law, see Hampton Heights Dev. Corp. v. Board of Water Supply, City of Utica, 136 Misc. 2d 906, 908 (N.Y. Sup. Ct. Oneida Co. 1987), and thus the court had no reason to consider the question of whether the action could even be taken by local law. We are thus reluctant to rely on this case as creating a new exception to the long-standing term limits rule.

Having no authority expressly providing otherwise, we are of the opinion that the Seneca County Board of Supervisors may not adopt a local law authorizing itself to appoint a county manager to a term of office that is longer than the tenure of a majority of members of the Board. To conclude otherwise would eviscerate the term limits doctrine in any area in which the Board was authorized to legislate.

We note that a local law providing a term of office for the county manager longer than the terms of a majority of the appointing board, thus binding the successor board to the appointing board's choice of officer, would have the effect of "curtail[ing a] power of an elective officer," Municipal Home Rule Law § 23(2)(f). See Hampton Heights Dev. Corp. v. Board of Water Supply, City of Utica, 140 A.D.2d 958 (4th Dep't 1988) (local law extending term allowed mayor to bind successor, and thus curtailed power of successor, and was invalid absent submission to public referendum); see also Op. Att'y Gen. (Inf.) No. 90-50; Op. St. Compt. 91-11. The local law would thus be subject to mandatory referendum, see Municipal Home Rule Law § 23(2)(f), and the failure to subject the law to mandatory referendum would invalidate the law, see Morin, 45 N.Y.2d at 295; Op. Att'y Gen. (Inf.) No. 96-18. The actions taken by an officer appointed under an invalid local law are considered valid under the de facto officer doctrine. See Ontario v. Western Finger Lakes Solid Waste Mgmt. Authority, 167 A.D.2d 848, 849 (4th Dep't 1990).

The Attorney General renders 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,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions