Can a New York county require a super-majority vote of its legislature to pass certain resolutions, like spending under an austerity plan or hiring under a hiring freeze?

Plain-English summary

Cayuga County had a practice of requiring a two-thirds vote of the County Legislature to pass certain resolutions: spending authorizations during austerity periods, hiring authorizations when a hiring freeze was in place, and transfers from the County's contingent fund. The County Attorney asked whether the County had legal authority to impose those super-majority requirements.

The AG answered with a two-part analysis: yes, a county can require a super-majority for certain kinds of resolutions, but it can only do so by local law, and that local law is subject to mandatory referendum.

Where the authority does not come from. County Law § 153(8) lets the board of supervisors (renamed the County Legislature in Cayuga and many other counties) "determine the rules of its own proceedings." The AG read that authority narrowly. Following Morris v. Cashmore, 253 A.D. 657 (1st Dep't), aff'd, 278 N.Y. 730 (1938), and AG Op. (Inf.) 2001-6, the AG concluded that a legislative body's rule-making authority covers intra-cameral matters (selecting a vice-chair, organizing committees, adopting internal rules), but not changing the number of votes needed to adopt substantive legislative acts. Burroughs v. Brinkerhoff, 68 N.Y. 259 (1877), said the same thing: a rule of the board cannot alter the statutory voting rule; only the law can. So the County could not impose a super-majority requirement by adopting an internal rule.

Where the authority does come from. A county can enact a local law on the same subject under its home-rule power. Article IX, § 2(c) of the Constitution and Municipal Home Rule Law § 10(1)(i) let a county adopt local laws on its "property, affairs, or government," not inconsistent with the Constitution or any general law. Article IX, § 2(c)(3) and Municipal Home Rule Law § 10(1)(ii)(a)(3) add authority over the "transaction of its business." The AG concluded that a super-majority requirement for certain resolutions is the kind of structural decision about how the County governs that fits within both grants. Prior AG opinions had similarly classified procedures for designating official newspapers (Op. Att'y Gen. (Inf.) Nos. 92-1 and 86-13) and check-countersigning rules (Op. St. Comptr. No. 93-20) within those grants.

The default rule and consistency. County Law § 153(4) sets the default voting rule: a majority of the total membership of the board. The AG read § 153(4) as a default that the statute itself contemplates can be displaced ("no proportion of the voting strength for such action is otherwise prescribed"). A local law setting a super-majority for certain resolutions would not be inconsistent with § 153(4) for that reason. The AG flagged that supersession of state law in this area assumes that § 153(4) is a general law; if it were a special law, even less home-rule consistency would be required.

Important limit: resolutions only, not local laws. A county can require a super-majority to adopt certain resolutions but cannot impose a super-majority requirement for the adoption of local laws themselves. The Municipal Home Rule Law sets the procedure for adopting local laws, and that procedure cannot be locally altered (Op. Att'y Gen. (Inf.) No. 98-37). Resolutions are not local laws (Municipal Home Rule Law § 2(9)), so the procedure rules in the Municipal Home Rule Law do not constrain a local law setting voting requirements for resolutions.

Mandatory referendum. Even though the County could adopt the local law, Municipal Home Rule Law § 23(2)(f) requires a mandatory referendum for any local law that "curtails the power of an elective officer." The AG concluded that requiring more than a simple majority to pass certain resolutions curtails the voting power of the elective members of the County Legislature, who are elective officers under County Law § 150-a. Each legislator's vote becomes less likely to be the deciding vote in a super-majority world, which the AG analogized to the curtailment recognized in Heeran v. Scully, 254 N.Y. 344 (1930). The 2007 Court of Appeals decision in Mayor of New York v. Council of New York provided the current standard: a local law curtails an elective officer's power if it impairs a power conferred on the officer "as part of the framework of local government." A voting-strength change does that. So the County's local law, even if otherwise authorized, would need to go to the voters.

The AG declined to address whether the specific resolutions Cayuga County had in mind (austerity spending, hiring under freeze, contingent-fund transfers) were preempted by state law or otherwise barred. That question was left for case-by-case analysis. The AG also cited Matter of Benderson Dev. Co., Inc. v. City of Utica, 5 Misc. 3d 467 (Sup. Ct. Oneida County 2004), where a city code provision that required a three-quarters vote to pass certain zoning amendments was held preempted by state law. The preemption check matters.

Currency note

This opinion was issued in 2007. 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

Could a county skip the referendum by tying the rule to bond-related or charter-only matters?
The opinion does not address those workarounds. The mandatory-referendum trigger in § 23(2)(f) turns on whether the local law curtails an elective officer's power. The substantive purpose of the local law does not change the analysis if its effect is to reduce voting weight.

What about a super-majority requirement on tax increases?
The opinion's analysis depends on the type of action being voted on (a resolution) rather than the subject. A tax-increase resolution would presumably also be subject to the same framework: a local law could impose a super-majority but would be subject to mandatory referendum and would also need to clear any state-law preemption hurdles.

Why does the AG let a local law do what an internal rule cannot?
Because the legal hierarchy is different. Internal rules are housekeeping. A local law is a legislative act on par with state law that home-rule authority permits the county to enact. The AG draws the line at substantive voting-rule changes: only the law (state or local) can change them; an internal rule cannot.

Does this apply to towns and villages too?
The reasoning extends naturally. Towns and villages have parallel home-rule authority and similar statutory defaults. The specific statute being supersesed and the mandatory-referendum trigger would have to be checked under the relevant chapter (Town Law, Village Law, Municipal Home Rule Law).

Why is a referendum needed for legislators voting on their own voting weight?
The Legislature's design in Municipal Home Rule Law § 23 was to protect elective offices from legislative bodies altering their structural authority without voter consent. Reducing the effective power of a legislator's vote is precisely the kind of change § 23(2)(f) was designed to put to the people.

Background and statutory framework

County governance in New York runs through Article 4 of the County Law. Section 153 sets the rules of procedure for the board of supervisors / county legislature. Section 153(4) provides the default majority-of-total-membership voting rule. Section 153(8) provides the body's rule-making authority over its own proceedings. Section 153(1) lets the body exercise its powers by local law or resolution, with formal procedures from Municipal Home Rule Law Article 3 governing local-law adoption.

General Construction Law § 41 separately requires public bodies to act by a majority of the whole, which is what the Morris v. Cashmore line says about intra-cameral rule-making. Rules of procedure can govern committee assignments and the like but cannot change the threshold for substantive legislative acts.

Municipal Home Rule Law § 23(2)(f) is the mandatory-referendum trigger for local laws that curtail an elective officer's power. The Court of Appeals' 2007 Mayor of New York v. Council of New York decision is the current authority on what "curtails the power of an elective officer" means: impairment of structural authority versus mere consequences of legislative policy.

Citations

• County Law § 150-a (county legislative body designation); § 153 (rules of procedure); § 153(1) (powers exercisable by local law or resolution); § 153(4) (default majority rule); § 153(8) (rule-making authority).
• General Construction Law § 41 (public bodies act by majority of the whole).
• Municipal Home Rule Law Article 3 (procedure for adopting local laws); § 2(5) (general law definition); § 2(9) (local law excludes ordinance and resolution); § 2(12) (special law definition); § 10(1), § 10(1)(i), § 10(1)(ii)(a)(3) (home-rule authority); § 23(2)(f) (mandatory referendum for curtailing elective-officer powers).
• N.Y. Const. Art. IX § 2(c), § 2(c)(3) (home rule).
• Morris v. Cashmore, 253 A.D. 657 (1st Dep't), aff'd, 278 N.Y. 730 (1938) (rule-making limited to intra-cameral matters).
• Burroughs v. Brinkerhoff, 68 N.Y. 259 (1877) (statutory voting rule cannot be changed by a rule of the board).
• Reese v. Lombard, 47 A.D.2d 327, 330 (4th Dep't 1975) (local law more formal than resolution).
• Mayor of New York v. Council of New York, 9 N.Y.3d 23 (2007) (current test for curtailment of elective-officer powers).
• Heeran v. Scully, 254 N.Y. 344 (1930) (local law diluting elective body's power subject to referendum).
• Duci v. Roberts, 65 A.D.2d 56 (3d Dep't 1978) (Municipal Home Rule Law procedure does not govern non-local-law enactments).
• Matter of Benderson Dev. Co., Inc. v. City of Utica, 5 Misc. 3d 467 (Sup. Ct. Oneida County 2004) (state-law preemption check for voting-rule local laws).
• Op. Att'y Gen. (Inf.) No. 2001-6 (rule-making authority does not extend to changing votes for non-intra-cameral matters).
• Op. Att'y Gen. (Inf.) No. 98-37 (local law cannot impose super-majority for adoption of local laws themselves).
• Op. Att'y Gen. (Inf.) Nos. 92-1, 86-13 (designating official newspapers within property/affairs/government); Op. St. Comptr. No. 93-20 (check countersigning within property/affairs/government).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2007-5_pw.pdf

Original opinion text

COUNTY LAW §§ 150-a, 153, 153(1), 153(4), 153(8); GENERAL CONSTRUCTION LAW § 41; MUNICIPAL HOME RULE LAW ART. 3, §§ 2(5), 2(9), 2(12), 10(1), 10(1)(I), 10(1)(ii)(a)(3), 23(2)(f); NEW YORK STATE CONSTITUTION ART. IX, § 2(c), ART. IX, § 2(c)(3)

A county may adopt a local law requiring a super-majority to pass certain types of resolutions. Such a local law would be subject to mandatory referendum.

August 28, 2007

Frederick R. Westphal
County Attorney
Cayuga County
160 Genesee Street
6th Floor
Auburn, New York 13021

Informal Opinion No. 2007-5

Dear Mr. Westphal:

You have requested an opinion regarding whether the County may require that certain resolutions be adopted by a super-majority vote. You have advised that the County Legislature has in the past required approval by two-thirds of the Legislature for certain types of resolutions: resolutions authorizing certain expenditures when the County has adopted an austerity spending plan, resolutions authorizing filling positions of employment with the County when the County has restricted the hiring of County personnel, and resolutions authorizing the transfer or expenditure of money from the County's contingent fund. You have asked the general question of whether the County has the authority to impose such super-majority requirements for the enactment of resolutions of a particular type. As explained below, we are of the opinion that the County has the authority to impose such requirements by local law, but such a local law would then be subject to a mandatory referendum.

Analysis

Section 153 of the County Law governs the rules of procedure of a county board of supervisors. The powers and duties granted a county board of supervisors may be exercised by an elective county legislative body designated by another name. County Law § 150-a. You have advised that in Cayuga County, the legislative body is denominated the County Legislature.

Of particular relevance here, section 153 provides that

[w]henever in this chapter or other general, special or local law, the board of supervisors is authorized or required to act, and no proportion of the voting strength for such action is otherwise prescribed, such action shall be taken by the affirmative vote of a majority of the total membership of the board.

County Law § 153(4). You have asked whether the County may alter the voting strength necessary to pass certain types of resolutions.

One possible source of authority for the County to require a super-majority to pass certain types of resolutions is County Law § 153(8), which provides that, "[e]xcept as otherwise expressly provided, the board of supervisors of each county shall determine the rules of its own proceedings." County Law § 153(8). We believe, however, that this section does not provide the necessary authority. This section permits a legislative body to determine the number of votes required for intra-cameral matters such as selecting a vice-chairman, appointing council members to council committees, and adopting council rules. See Morris v. Cashmore, 253 A.D. 657 (1st Dep't), aff'd no opn., 278 N.Y. 730 (1938) (General Construction Law § 41, which requires public entities to act by a majority of the whole and not by majority of a quorum, does not restrict rule-making as to intra-cameral matters). But this provision does not authorize changing the number of votes required to adopt legislative acts.

In Op. Att'y Gen. (Inf.) No. 2001-6, we concluded, following Morris, that the authority of a body to establish general rules of procedure does not authorize changing voting requirements for matters other than intra-cameral matters. In that opinion, the issue was whether the city council could reduce the number of votes required to pass a resolution; we concluded that its general housekeeping authority did not authorize the city to permit a number less than a majority of the whole council to adopt non-tax resolutions.

Similarly, here we are of the opinion that the authority to determine general rules of procedure does not authorize increasing the number of votes required to pass a resolution. As the Court of Appeals stated in Burroughs v. Brinkerhoff, 68 N.Y. 259 (1877):

The Revised Statutes declare that a majority of the supervisors of any county shall constitute a quorum for the transaction of business; and all questions which shall arise at their meetings shall be determined by the voice of a majority of the supervisors present. No rule of the board could alter this. It could be changed by law only.

68 N.Y.2d at 262-63.

We believe, however, that the County's home rule authority permits it to enact a local law that requires a super-majority to pass certain types of resolutions. The powers of a county legislature, except as otherwise expressly provided, may be exercised by either local law or resolution. County Law § 153(1). While both resolutions and local laws are legislative acts, the adoption of local laws requires compliance with procedures that passage of resolutions does not. See Reese v. Lombard, 47 A.D.2d 327, 330 (4th Dep't 1975) (a local law is a more formal legislative act than a resolution); see also generally Municipal Home Rule Law article 3 (procedure for adoption of local laws); cf. Memorandum of the Uniform County Law Commission, reprinted in Bill Jacket for ch. 691 (1950), at 9 ("The [County L]aw is designed that measures dealing with the permanent structure of county government must be passed by local law and temporary measures by resolution.").

A county is authorized to adopt local laws relating to its property, affairs, or government that are not inconsistent with the provisions of the Constitution or with any general law. N.Y. Const. Art. IX, § 2(c); Municipal Home Rule Law § 10(1)(i). A county is also authorized to adopt local laws relating to the transaction of its business that are not inconsistent with the provisions of the Constitution or with any general law, except to the extent that the Legislature restricts the adoption of such a local law relating to other than the property, affairs, or government of the county. N.Y. Const. Art. IX, § 2(c)(3); Municipal Home Rule Law § 10(1)(ii)(a)(3).

We believe that these grants of home rule power authorize a local law requiring a super-majority vote of the County Legislature for certain types of resolutions, that such a local law relates to the County's "property, affairs or government" or to the "transaction of its business." In the past, we have concluded that a county may adopt a local law providing that a notice of a newly-adopted local law, an abstract of its provisions, and details as to the location of a copy of the text of the law must be published in a county's official newspaper, that such a law falls within the "property, affairs or government" and is part of the transaction of the business of the county. Op. Att'y Gen. (Inf.) No. 92-1. We have also previously concluded that a county may adopt local law establishing a procedure for designating the county's official newspaper, that such a law falls within the "property, affairs or government" and is part of the transaction of governmental business. Op. Att'y Gen. (Inf.) No. 86-13. Similarly, a local law requiring a super-majority for certain types of resolutions, we believe, directly relates to the manner in which the government of the County operates and by which it transacts its business. Cf. Op. St. Comptr. No. 93-20 (local law requiring that checks issued by a receiver of taxes be countersigned by another municipal officer falls within the "property, affairs or government" and is part of the transaction of business of a town).

A local law requiring a super-majority to adopt certain types of resolutions would not be inconsistent with County Law § 153(4). A local government's authority to increase the number of votes necessary to pass particular types of resolutions may be preempted by state law. See, e.g., Matter of Benderson Dev. Co., Inc. v. City of Utica, 5 Misc. 3d 467 (Sup. Ct. Oneida County 2004) (city code provision requiring three-fourths vote of the common council to pass a zoning amendment when the city planning board issued an adverse recommendation regarding the amendment was preempted by state law). Section 153(4) provides the default voting rule for a county board of supervisors "[w]henever in [the County Law] or other general, special or local law, the board of supervisors is authorized or required to act, and no proportion of the voting strength for such action is otherwise prescribed," but the statute also expressly recognizes that other voting proportions may be prescribed.

While a local governing body may by local law require a super-majority for certain types of resolutions, it may not impose such a requirement on the enactment of local laws, as we expressly concluded in Op. Att'y Gen. (Inf.) No. 98-37. We so concluded because such a requirement would be inconsistent with the procedure set forth in the Municipal Home Rule Law for adopting local laws. Id. Resolutions are not, under the Municipal Home Rule Law, local laws. Municipal Home Rule Law § 2(9) ("local law" does not include "an ordinance, resolution or other similar act of the legislative body"). The provisions of the Municipal Home Rule Law prescribing the procedure for adopting local laws thus do not apply to enactments that are not local laws, such as city ordinances, Duci v. Roberts, 65 A.D.2d 56 (3d Dep't 1978) (provisions of Municipal Home Rule Law do not apply to amendment of city ordinance), or the resolutions that are at issue here.

Finally, although we believe that a county's home rule authority includes the authority to pass a local law requiring a super-majority to pass certain types of resolutions, we conclude that passage of any such law would be subject to a mandatory referendum. A local law that curtails the power of an elective officer is subject to mandatory referendum, except as otherwise provided or under authority of a state statute. Municipal Home Rule Law § 23(2)(f). A law curtails a power of an elective officer if it impairs a power conferred on the officer "as part of the framework of local government." Mayor of New York v. Council of New York, 2007 N.Y. LEXIS 1564, at 11 (N.Y. June 12, 2007). In contrast, a limitation on the activities that a local elective officer may take that is "merely a consequence of legislative policy making" and does not limit the elective officer's structural authority, does not require a referendum. Id. at 12.

A local law that requires more than the simple majority that would otherwise suffice to adopt a resolution would, in our opinion, curtail the voting power of the members of the County Legislature, who are elective officers, County Law § 150-a. Such a local law would have the effect of reducing the proportional impact of each legislator's vote, cf. Heeran v. Scully, 254 N.Y. 344 (1930) (local law adding two appointees of the mayor to a board previously consisting of three elective officers has effect of curtailing power of such elective officers and is subject to referendum), and thus would curtail each legislator's relative ability to cast the deciding vote. Therefore, such a local law is subject to mandatory referendum.

In summary, we conclude that the County may adopt a local law requiring that a super-majority be required to pass certain types of resolutions, and that such a local law would be subject to mandatory referendum.

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,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions