If the Port Jervis city council has no minority-party members, can the city appoint additional majority-party members to fill the open seats on the Community Development Agency board?

Plain-English summary

Port Jervis has a Community Development Agency (CDA), an urban renewal agency the Legislature created in General Municipal Law § 584. The statute calls for "not less than three and not more than seven" board members. Three are residents of the city appointed by the mayor. Of the remaining seats, "two shall be selected from the majority of the city council to serve at its pleasure, and two shall be selected from the minority of the city council to serve at its pleasure."

The political balance language comes from a 1981 amendment that the City had requested to break a stalemate. Before 1981, the CDA had three to five members, all appointed by the mayor with city council approval. In the late 1970s, an all-one-party city council had repeatedly refused to confirm the mayor's appointments. The Legislature stepped in and split appointment authority between mayor, majority, and minority.

By 2012, Port Jervis had a different problem. The nine-member city council had eight registered members of one party and one independent who had been endorsed by that party. There was no minority party. The city asked the AG: do we just put four majority members on the CDA instead of two majority plus two minority?

The AG read the statute strictly. Section 584 named one variable element: total board size, which could be anywhere from three to seven. Three mayoral appointees were always required. Two majority-from-the-council appointees were always required. The minority-from-the-council appointees only existed if there was a minority. The opinion read silence in the statute about substitutes as deliberate: when no minority existed, the CDA simply had fewer than seven members. There was no statutory text shifting those seats to additional majority appointments.

That reading also matched the purpose of the 1981 amendment. The whole point of the change was to inject political balance. Letting the majority fill all four council-side seats would defeat that purpose, because the majority bloc would then control a quorum of the seven-member CDA. The opinion noted that if past CDA boards had been seated with extra majority members in violation of § 584, the de facto officer doctrine (Ontario v. Western Finger Lakes Solid Waste Mgmt. Authority) would generally protect the validity of past actions toward third parties, even though the underlying appointments were irregular.

Currency note

This opinion was issued in 2012. 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

Q: What's the minimum number of CDA members the AG's reading would tolerate? A: Three. Section 584 says the board has at least three members, and the three mayoral appointees can satisfy that floor by themselves. Adding two majority appointees gets the total to five. Adding any minority appointees that exist gets the total higher. With no minority, the board lands somewhere between three and five, depending on whether the council has acted on its two majority slots.

Q: Could quorum problems block the CDA from functioning? A: Quorum under General Municipal Law § 553(3) is a majority of members. With three members, two suffice for a quorum. With five members, three suffice. The opinion didn't address operational risk in detail, but the math suggests the board can still function.

Q: Why did the AG worry about the majority controlling a quorum? A: If § 584 were read to allow four majority members instead of two majority plus two minority, those four members alone would constitute a quorum of a seven-member CDA. They could meet, vote, and act without any minority-party participation. That would defeat the political-balance purpose the 1981 amendment was enacted to serve.

Q: What's the de facto officer doctrine the opinion mentioned? A: A common-law rule that protects the validity of acts taken by someone who carries out a public office under color of authority, even if the appointment was irregular. The doctrine is meant to protect third parties who rely on the official's authority and to keep municipal business from being collaterally attacked years later. The AG flagged it as a likely backstop for any past actions of an improperly composed CDA, while still saying the future composition had to comply with the statute.

Q: How is "minority" determined when an independent member exists? A: The opinion treated the independent member as effectively unaligned with the majority for purposes of the question, since the AG concluded that the council had no members "who belong to a political party that holds the minority of the council." That language tracks party registration, not endorsement. An independent endorsed by the majority party was not, in the AG's framing, a minority-party member, so the statute's minority slots had no occupants.

Q: Could the city seek a legislative fix?
A: Yes. The current configuration came from a 1981 special law (ch. 421) requested by the City. If Port Jervis (or the Legislature on its own) wanted to fill all council-side seats with majority members in the absence of a minority, that would require another statutory amendment. The opinion was clear that the existing § 584 text did not support that result.

Background and statutory framework

Urban renewal agencies in New York are public benefit corporations created under General Municipal Law article 15-A to plan and finance urban renewal projects. Section 553(2) gives them authority to undertake, finance, and complete those projects. Section 551 names them. The Port Jervis CDA was added by General Municipal Law § 584.

The statute originally (1968) provided for three to five mayoral appointees subject to city council approval. The 1981 amendment (Act of July 7, 1981, ch. 421) changed that to a three-mayor-plus-two-majority-plus-two-minority structure that could yield boards of three to seven members depending on which slots were filled. The amendment was specifically designed to break a stalemate that had paralyzed the CDA when the mayor and a unified council were of opposing parties.

The interpretive question the City raised, what to do when the political-balance variables didn't all exist, fell into a gap the 1981 drafters apparently hadn't anticipated. The AG's textualist answer (no statutory authority to substitute majority members for non-existent minority members) preserved the political-balance design at the cost of a smaller-than-maximum CDA board.

Citations and references

Statutes:

• General Municipal Law § 553 (urban renewal agency powers and quorum)
• General Municipal Law § 584 (Port Jervis CDA)

Cases:

• Ontario v. Western Finger Lakes Solid Waste Mgmt. Authority, 167 A.D.2d 848 (4th Dep't 1990) (de facto officer doctrine)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2012-5_pw.pdf

Original opinion text

General Municipal Law §§ 551, 553(2), 553(3), 584, Article 15-A; Session Laws 1968 Ch 719, 1981 Ch 421 Under state law that provides for appointment from both the majority and the minority of city council if the city council has no members who belong to the minority party, then no additional members from the majority party are to be selected to the CDA board.

July 13, 2012
Damian J. Brady
Corporation Counsel
City of Port Jervis
17 E. Main Street
P.O. Box 1114
Port Jervis, NY 12771

Informal Opinion
No. 2012-5

Dear Mr. Brady:
You have requested an opinion relating to the appointment of members of the Port Jervis Community Development Agency. The Port Jervis Community Development Agency ("CDA") is a municipal urban renewal agency established by General Municipal Law § 584. Pursuant to section 584, the CDA is governed by the provisions of General Municipal Law article 15-A, which relate to the organization and powers of urban renewal agencies. It is a public benefit corporation, the function of which is to undertake, finance, and complete urban renewal projects. General Municipal Law §§ 551, 553(2).

Pursuant to section 584, "not less than three and not more than seven members" comprise the CDA's governing body. Three members, residents of the city of Port Jervis, are appointed by the mayor. General Municipal Law § 584. Of the remaining members, "two shall be selected from the majority of the city council to serve at its pleasure, and two shall be selected from the minority of the city council to serve at its pleasure." Id. You have explained that this language was enacted at the City's request as a result of a political stalemate in the early 1980s. Prior to 1981, section 584 provided that the CDA was to have at least three and not more than five members, who were appointed by the mayor, subject to the approval of the city council. Act of June 16, 1968, ch. 719, 1968 McKinney's N.Y. Laws 1497. You have explained that, at that time, the nine-member city council had five members, all in the same political party, who repeatedly declined to approve the candidates for the CDA board selected by the mayor, a member of the opposing political party. The City, wanting to break the stalemate, requested that the Legislature adopt special legislation amending section 584 to its current form. The Legislature enacted the requested amendment. Act of July 7, 1981, ch. 421, 1981 N.Y. Laws 1629.

You have explained that the nine-member city council is currently composed of eight members of the same political party and one member who is not affiliated with a party but was endorsed by the political party in which the other council members are registered. As a result, the city council does not have a minority party. You have therefore asked about the composition of the CDA board.

Clearly, three members of the board must be residents of the city of Port Jervis appointed by the mayor. General Municipal Law § 584. Also free from doubt is that two members of the CDA board are to be selected from the eight city council members who are of the same political party.

Based on the plain language of section 584, we conclude that, in the event the city council has no members who belong to a political party that holds the minority of the council, then no additional members of the city council are to be selected to the CDA board. We reach this result because the only variable element in the language of section 584 is the total number of members that the CDA may have. It must have at least three, which can be satisfied by the mayor's appointments. It cannot have more than seven, which can be satisfied by making all of the appointments as provided in section 584: three by the mayor, two "from the majority," and two "from the minority." Though the minority at some time may have fewer than two members, section 584 does not provide for additional appointments "from the majority"; instead, it authorizes a CDA board of fewer than seven members.

Indeed, this result is consistent with what you have described as the purpose of the amendment, providing the CDA board with some political balance in its membership. To conclude otherwise would subvert this purpose. For example, with the current political makeup of the city council, interpreting section 584 to allow the appointment of four members "from the majority" to the CDA would give those four members control of a quorum of the CDA board. General Municipal Law § 553(3) (majority of members constitute quorum).

You have advised that the city council in the past has appointed additional majority members to seats on the CDA board when the city council had either no members or only one member "from the minority." With respect to the actions of CDA boards that had extra members appointed from the majority, we note that under the de facto officer doctrine, the acts of one who carries out the functions of public office under color of authority are generally valid as to third parties and the public, and thus are immune from collateral attack, notwithstanding irregularities in the manner of appointment. Ontario v. Western Finger Lakes Solid Waste Mgmt. Authority, 167 A.D.2d 848, 849 (4th Dep't 1990).

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