When a member of a New York public housing authority's board was elected by tenants (rather than appointed by the mayor), does the Public Housing Law's removal procedure still apply?
Plain-English summary
The Village of Nyack Housing Authority has a seven-member board: five appointed by the village mayor and two elected by tenants of authority housing. The mayor wanted to know whether Public Housing Law § 34's removal-for-cause procedure (used for inefficiency, neglect of duty, or misconduct, with a public defense opportunity) applied to the tenant-elected members or only to the mayor's appointees.
The AG concluded that § 34 applies to both. Three reasons:
- Plain text. Section 34 speaks of "a member" of the board without distinguishing between appointed and elected members.
- No oddity. New York law often allows one officer to remove an elected official for malfeasance. Article XIII, § 13 of the State Constitution gives the Governor power to remove elected sheriffs, county clerks, and district attorneys. Public Officers Law § 33 lets the Governor remove county treasurers, county coroners, and chief elective city officers. So a mayor removing a tenant-elected board member fits within a familiar pattern.
- No undermining of tenant representation. Removal under § 34 doesn't let the mayor backfill with an appointee. Section 30(5) requires another tenant election "as soon as may be practical" after the seat opens. So tenant representation is preserved across the removal.
The opinion notes the historical sequence: the removal procedure was enacted in 1939 when all board members were mayoral appointees (L. 1939, ch. 808). Tenant-elected seats came later (L. 1969, chs. 488, 1600; L. 1974, ch. 482). Section 34 has not been amended since to differentiate. The AG read that as the Legislature's intent to keep one removal regime for both kinds of members.
Currency note
This opinion was issued in 2015. 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.
Historical context
What the opinion meant for housing authorities
The Nyack housing authority's mayor (and any similarly-situated mayor across New York) could initiate § 34 proceedings against any board member, including a tenant-elected one, on grounds of inefficiency, neglect of duty, or misconduct in office, after providing the member a public hearing. The procedure could not be used to alter the elected/appointed seat ratio, because the seat would be refilled by tenant election.
What the opinion meant for tenant board members
Tenant-elected members serve subject to the same accountability standards as appointed members. The opinion is a reminder that the elective character of the seat does not insulate the holder from for-cause removal by the mayor. Tenants retain the right to elect a successor.
Why the opinion engages with state-constitutional analogies
By comparing § 34 to Article XIII, § 13 (gubernatorial removal of elected sheriffs, etc.) and to Public Officers Law § 33, the AG anchors a possibly counterintuitive result (a mayor removing an elected member) in long-standing New York governance practice. Cross-branch removal is normal in New York; the AG's interpretation does not import a new oddity into housing-authority governance.
Common questions
Q: What grounds permit removal under § 34?
A: Inefficiency, neglect of duty, or misconduct in office, with the member afforded an opportunity to be publicly heard with respect to the charges before removal takes effect.
Q: Who can initiate the removal procedure?
A: The mayor of the appointing village or city. The mayor's role is the procedural lever; the substantive grounds limit when it can be exercised.
Q: After a tenant-elected member is removed, who fills the seat?
A: The tenants of the authority, by another election held "as soon as may be practical." Public Housing Law § 30(5).
Q: How does this compare to other dual-board removal questions?
A: It is consistent with the broader New York rule that mayors and governors can remove statutorily-defined officeholders on for-cause grounds, even when the holder was elected. The opinion does not reach how this rule might apply to other public benefit corporations with mixed appointment/election schemes, but the reasoning is portable.
Q: Could a housing authority's board change § 34's procedure by bylaw?
A: No. The removal procedure is established by state statute and is not delegated to local bylaw. A housing authority board cannot alter the standards for its own members' removal.
Background and statutory framework
Public Housing Law § 30(2) and (5) define the composition of village housing authority boards: a base set of mayor-appointed members, plus tenant-elected members where applicable (a structural feature added by the 1969 and 1974 amendments). Section 33 sets the oath of office. Section 34 establishes the removal procedure: the mayor may remove for inefficiency, neglect of duty, or misconduct in office, after a public hearing.
The original 1939 enactment of § 34 (L. 1939, ch. 808) predated tenant-elected members. The 1969 and 1974 amendments added the elected seats but did not amend the removal procedure to carve them out. The AG reads that legislative silence as deliberate.
For comparison authorities the opinion cites:
- N.Y. Const. Art. XIII, § 13: Governor may remove elective sheriffs, county clerks, and district attorneys (with the constitutional procedure spelled out).
- N.Y. Public Officers Law § 33: Governor's removal authority over county treasurers, coroners, and chief elective city officers.
These show that mayoral or gubernatorial for-cause removal of an elected officer is an established pattern in New York governance. The opinion uses them to confirm that § 34's coverage of tenant-elected members is not anomalous.
Citations and references
Statutes:
- N.Y. Public Housing Law § 30(2), (5) (board composition); § 33 (oath); § 34 (removal procedure)
- N.Y. Public Officers Law § 33 (Governor's removal authority)
- N.Y. Const. Art. XIII, § 13 (Governor removal of certain elected officers)
- Session Laws L. 1939, ch. 808 (origin of § 34); L. 1969, chs. 488, 1600; L. 1974, ch. 482 (tenant-elected member amendments)
Source
- Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
- Original PDF: https://ag.ny.gov/sites/default/files/opinions/2015-2_pw.pdf
Original opinion text
Public Housing Law §§ 30(2), 30(5), 33, 34; Session Laws L. 1939, CH. 808, L. 1969, CH. 488, L. 1969, CH. 1600, L. 1974, CH. 482; New York Constitution Article XIII, § 13
The procedure prescribed by Public Housing Law § 34 to remove a member of the Authority's board applies to the members who sit on the board by virtue of election by the tenants of the Authority.
August 4, 2015
Gregg A. Coffey
Masch, Coffey & Associates, LLP
Village of Nyack Housing Authority
254 South Main Street
Suite 515
New City, New York 10956
Informal Opinion
No. 2015-2
Dear Mr. Coffey:
You have requested an opinion relating to the procedure to be followed to remove a member of the Housing Authority board from office. The statutes governing the Housing Authority include a procedure for removal by the mayor, and your question specifically is whether this procedure applies not only to remove a member who was appointed by the mayor, but also to remove a member who was elected by the residents of the Authority's housing. As explained below, we are of the opinion that it applies to both appointed and elected members.
The Housing Authority is governed by a seven-member board. Five members are appointed by the mayor of the village of Nyack and two members are elected by the tenants of the Authority. Public Housing Law § 30(2),(5). The mayor may remove a member of the board for inefficiency, neglect of duty, or misconduct in office after the member has an opportunity to publicly defend him- or herself with respect to the charges against him or her. Public Housing Law § 34.
The statute establishing the procedure for removing a member was enacted at a time when all board members were appointed by the village mayor. L. 1939, ch. 808, 1939 N.Y. Laws 1978, 1986, 1988. Much later, the Public Housing Law was amended to allow, and then to require certain, housing authority boards to include tenant-elected members. L. 1969, ch. 488, 1969 N.Y. Laws 1600; L. 1974, ch. 482, 1974 N.Y. Laws 1365. The statute governing the procedure for removal has not been amended since tenant-elected members were added to housing authority boards.
We are of the opinion that the procedure established for removing board members by Public Housing Law § 34 applies to tenant-elected members as well as to those appointed by the mayor. First, and most significantly, the statute by its language applies to all members without distinguishing between those appointed and those elected.
Second, it is not uncommon under New York law for an elected official to be subject to removal by another officer for malfeasance. See, e.g., N.Y. Const. Art. XIII, § 13 (Governor removes elective sheriff, county clerk, district attorney); Public Officers Law § 33 (Governor removes county treasurer, county coroner, chief elective officer of city).
Third, application of the statutory removal procedure does not undermine the legislative decision to give residents representation on the board, because after removal the law provides for a new election for a tenant-member "as soon as may be practical." Public Housing Law § 30(5). Thus, while the mayor is authorized to remove a board member elected by the residents, he or she does not fill the vacancy by appointment. Instead, that position will be held by another member chosen by the residents of the Authority's housing.
Thus, no reason appears to question the plain meaning of Public Housing Law § 34, which provides a procedure for removing any member of the Authority's board.
For these reasons, we are of the opinion that the procedure prescribed by Public Housing Law § 34 to remove a member of the Authority's board applies to the members who sit on the board by virtue of election by the tenants of the Authority.
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