If a public housing authority board member moves from the city to a neighboring suburb, can the city pass a local law to keep them on the board, by extending the residency requirement to the whole county?

Informal Opinion 2011-01: Ithaca cannot use home rule to extend a state-created housing authority's city-residency requirement

Plain-English summary

The Ithaca Housing Authority is the public agency that runs federally-assisted housing in Ithaca. Its board members are, with two elected exceptions, appointed by the mayor of Ithaca, and they have always had to live inside the city limits. Two members had moved outside the city and wanted to keep serving. The City Attorney asked the AG: can Ithaca pass a local law extending the residency boundary to the entire county, so those members can stay?

The AG said no. The Ithaca Housing Authority is created by State Public Housing Law § 429 as an independent "body corporate and politic," not as part of the city government. Although the city's mayor appoints most of the board, the authority is a state instrumentality whose officers are not city officers. Home rule under Municipal Home Rule Law § 10(1)(ii)(a)(1) reaches a local government's "own officers." It does not reach the officers of an independent state-created public corporation, even one that operates within the city's boundaries.

The AG noted prior consistent opinions: a city cannot use home rule to abolish an independent water board (Op. Att'y Gen. (Inf.) No. 2007-6), modify the terms of an urban renewal agency board (Op. Att'y Gen. (Inf.) No. 98-21), or change appointment authority for an industrial development agency (Op. Att'y Gen. (Inf.) No. 81-117). The pattern: state-created independent public corporations are governed by the law that created them, not by host-municipality home rule.

The AG flagged that under Public Officers Law § 30(1)(d), failure to maintain residency creates a vacancy "by operation of law." So the two non-resident members in Ithaca had already vacated their offices when they moved out of the city. Counsel for the Authority acknowledged this. If the city wants to change the residency rule, it has to ask the State Legislature to amend Public Housing Law § 429. The city's home rule cannot do it.

Currency note

This opinion was issued in 2011. 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.

Background and statutory framework

Public Housing Law § 429 created the Ithaca Housing Authority and made it a "body corporate and politic." Section 429 also subjects the authority, its members, officers, employees, operations, and activities entirely to the provisions of Public Housing Law. Section 30(2) gives the mayor of Ithaca appointment authority over most board members; § 30(5) provides for two members elected by residents of authority housing. Section 31 makes the authority's territorial jurisdiction coterminous with the city.

Public Officers Law § 2 defines "local officers." Prior AG opinions held that public housing authority board members are local officers within § 2 because they exercise functions within municipal corporate limits. Section 3(1) requires local officers to maintain residency throughout their term, and § 30(1)(d) provides that ceasing to inhabit the relevant jurisdiction creates a vacancy by operation of law.

Municipal Home Rule Law § 10(1)(ii)(a)(1) authorizes local governments to legislate concerning their own officers and employees. Several prior informal opinions had used that provision to permit cities and towns to adopt local laws extending residency requirements for their own officers (Op. Att'y Gen. (Inf.) No. 97-11; Op. Att'y Gen. (Inf.) No. 87-32). The question here was whether that authority extends to officers of an independent state-created entity that happens to operate within city limits.

What the AG concluded at the time

Members of the Ithaca Housing Authority are local officers under Public Officers Law § 2 (and therefore must maintain city residency under § 3(1)), but they are not officers of the City of Ithaca. The Housing Authority is a separate state-created public corporation under Public Housing Law § 429. Its members' powers and duties flow from State law, not from a city charter or municipal ordinance.

Home rule under Municipal Home Rule Law § 10(1)(ii)(a)(1) is limited to a local government's own officers. The AG cited prior opinions concluding that home rule cannot reach state-created bodies operating within municipal boundaries:

• Op. Att'y Gen. (Inf.) No. 2007-6 (Elmira could not amend its charter to abolish an independent water board or alter the selection method).
• Op. Att'y Gen. (Inf.) No. 98-21 (Ithaca common council could not modify the terms of the Ithaca Urban Renewal Agency board).
• Op. Att'y Gen. (Inf.) No. 81-117 (county could not transfer industrial development agency appointment power, because the IDA's powers come from the State, not from the county).
• Op. Att'y Gen. (Inf.) No. 96-40 (Buffalo Municipal Housing Authority board members are "legally independent of the city government of the City of Buffalo").

The conclusion: the city cannot use its home rule authority to extend the residency requirement for Housing Authority board members. The remedy is legislative, an amendment to Public Housing Law § 429.

The AG also confirmed counsel's recognition that under Public Officers Law § 30(1)(d), the two members who had moved out of Ithaca had already vacated their offices by operation of law.

Common questions

Can the Housing Authority's board adopt its own residency rules instead?
The opinion does not directly address that, but Public Housing Law § 429 governs the authority "in all respects." Internal authority bylaws cannot override a statutory residency rule.

Could a county or special district extend the residency requirement?
No. The same reasoning applies. The Housing Authority is a State-created independent corporation, not a county or special district officer body. Only the State Legislature can change its residency rules.

Did the two non-resident members actually keep serving while waiting on this opinion?
Public Officers Law § 30(1)(d) creates the vacancy automatically when the officer ceases to inhabit the required jurisdiction. The opinion is clear that the two members had already vacated their offices when they moved out of the city, regardless of any pending local law proposal.

What if the State Legislature amended Public Housing Law § 429?
That would be the proper remedy. The State Legislature created the residency rule, and only the State Legislature can change it.

Does this opinion apply to other state-created entities besides housing authorities?
The reasoning generalizes. Any independent state-created public corporation (urban renewal agencies, industrial development agencies, water boards, etc.) is governed by its enabling state legislation, not by host-municipality home rule.

Citations

Statutes:

• Public Housing Law §§ 30(2), 30(5), 31, 429
• Public Officers Law §§ 2, 3(1), 30(1)(d)
• Municipal Home Rule Law § 10(1)(ii)(a)(1)

Prior AG opinions:

• Op. Att'y Gen. (Inf.) No. 95-19
• Op. Att'y Gen. (Inf.) No. 88-45
• Op. Att'y Gen. (Inf.) No. 97-11
• Op. Att'y Gen. (Inf.) No. 87-32
• Op. Att'y Gen. (Inf.) No. 96-40
• Op. Att'y Gen. (Inf.) No. 2007-6
• Op. Att'y Gen. (Inf.) No. 98-21
• Op. Att'y Gen. (Inf.) No. 81-117
• 1941 Op. Att'y Gen. 154

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2011-1_pw.pdf

Original opinion text

Public Housing Law §§ 30(2), 30(5), 31, 429; Public Officers Law §§ 2, 3(1), 30(1)(d); Municipal Home Rule Law 10(1)(ii)(a)(1)

The city of Ithaca cannot use its home rule authority to extend the residency requirement established for members of the Ithaca Housing Authority board by Public Housing Law § 429.

February 4, 2011

Daniel Hoffman
City Attorney
City of Ithaca
City Hall, 4th Floor
108 East Green Street
Ithaca, New York 14850

Informal Opinion No. 2011-1

Dear Mr. Hoffman:

You have joined in a request for opinion submitted by counsel to the Ithaca Housing Authority ("Housing Authority") asking whether the City may adopt a local law that would relax the residency requirements for the members of the Housing Authority's board, permitting them to reside anywhere in the County rather than requiring them to reside within the City, as under current law. As explained below, we conclude that the City is not so authorized.

The Housing Authority was created by Public Housing Law § 429. It constitutes a "body corporate and politic." Id. It is organized pursuant to the provisions of the Public Housing Law and possesses the powers and duties conferred upon municipal housing authorities by that law. Id. Additionally, "the authority, its members, officers and employees and its operations and activities shall in all respects be governed" by the provisions of the Public Housing Law. Id. Its members are, for the most part, appointed by the mayor of the City, id. § 30(2), and its territorial jurisdiction is coterminous with the territorial limits of the City, id. § 31.

This office has previously opined that the members of a public housing authority board are "local officers", see Public Officers Law § 2, and, as a result, must reside within the municipal corporation for which they are selected or within which their official functions are required to be exercised both at the time of appointment and throughout their terms in accord with Public Officers Law § 3(1). See Op. Att'y Gen. (Inf.) No. 95-19; Op. Att'y Gen. (Inf.) No. 88-45; 1941 Op. Att'y Gen. 154. Counsel to the Housing Authority has explained that two of its members have moved out of the City but still would like to serve as members of the Housing Authority. Thus he has raised the question of whether the City is authorized to adopt a local law that would allow members of the Housing Authority to reside within the County rather than within the City.

We previously have concluded that the home rule powers of a local government, which includes a city, authorize it to adopt a local law that extends the jurisdiction within which its public officers must reside. See, e.g., Op. Att'y Gen. (Inf.) No. 97-11 (town may adopt local law requiring that the town attorney be a county, rather than a town, resident); Op. Att'y Gen. (Inf.) No. 87-32 (city may adopt local law requiring its appointive officers reside within the county). This home rule authority is granted, however, only with respect to a local government's own officers. See Municipal Home Rule Law § 10(1)(ii)(a)(1). Because the Housing Authority is an independent corporation, its members, though "local officers" as opposed to "state officers" for purposes of Public Officers Law § 2, are not officers of the City. See Op. Att'y Gen. (Inf.) No. 96-40 (members of the Buffalo Municipal Housing Authority board are "legally independent of the city government of the City of Buffalo"). As a result, we conclude that the City is not authorized to adopt a local law that alters the requirement that Authority board members reside within the City.

This conclusion is consistent with previous opinions of this office in which we concluded that a local government's home rule authority did not allow it to adopt a local law affecting other types of independent local public corporations. For example, in Op. Att'y Gen. (Inf.) No. 2007-6, we opined that the city of Elmira could not use its home rule power to amend its charter to abolish an independent water board or to alter the method of selection of the water board's members from that provided by state law. In Op. Att'y Gen. (Inf.) No. 98-21, we concluded that the Ithaca common council could not adopt a local law modifying the terms of office of the members of the Ithaca Urban Renewal Agency, a public benefit corporation established by state law. In Op. Att'y Gen. (Inf.) No. 81-117, we considered whether a county could transfer from the county legislature to the county executive the power to appoint members of the county industrial development agency ("IDA"), a public benefit corporation. In concluding that the county could not, we explained that the question concerned "a State-created instrumentality. The . . . IDA is not a part of the county government; the IDA's powers are derived directly from the State, not from or through the county. The county's relationship to the . . . IDA is determined not by home rule but by the Legislature." Id.

Thus, in summary, we conclude that the City cannot use its home rule authority to extend the residency requirement established for members of the Housing Authority board by Public Housing Law § 429 from the boundaries of the City to the boundaries of the County.

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