This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

REFERENDUM -- Mandatory (local law increasing term of office of city engineer)
LOCAL LAWS -- Referendum Requirements (curtailing powers of elective officers subject to mandatory referendum)

MUNICIPAL HOME RULE LAW, §23(2)(f): A local law which authorizes a city mayor to appoint a city engineer for a longer term than presently provided in the city charter is subject to mandatory referendum.

You ask whether a proposed local law amending a city charter to increase the term of office of the city engineer is subject to a mandatory referendum. You indicate that the city engineer currently serves for a term of three years. You further state that the mayor nominates and appoints the city engineer with the consent of the common council. You also advise that the mayor's term of office is two years.

Local governments are authorized to adopt and amend local laws, not inconsistent with the Constitution or any general law, relating to, among other things, the terms of office of the officers of the local government (NY Const, art IX, §2; Municipal Home Rule Law, §10[1][ii][a][1]). Section 23 of the Municipal Home Rule Law provides, however, that certain local laws are subject to mandatory referendum. Paragraph f of subdivision 2 of section 23 provides that a local law is subject to mandatory referendum if it abolishes, transfers or "curtails" any power of an elective officer.

Two leading cases on the subject of whether a local law changing the term of office of an appointive officer curtails any power of an elective officer are Morin v Foster, 45 NY2d 287, 408 NYS2d 387 and Hampton Heights Development Corp. v Board of Water Supply of the City of Utica, 140 AD2d 458, 531 NYS2d 421. In Morin, supra, the Court of Appeals held that a county local law amending its charter to change the term of the county manager from four years, subject to removal only for cause, to an indefinite term, subject to removal at the pleasure of the county legislature, was void in the absence of a provision therein for a permissive referendum as required by Municipal Home Rule Law, §34 and article IX, §1(h)(2) of the State Constitution. The foregoing provisions are analogous to Municipal Home Rule Law, §23(2)(f) and, in pertinent part, provide that a local law amending a county charter, which abolishes or curtails any power of an elective county officer, is subject to permissive referendum.

The Court noted that although county legislators were elected for a two-year term, the county charter uniquely empowered the legislature to bind its successors by appointing the county manager for a four-year term and that the abolition of the four-year term curtailed that power. The Court, in addressing the argument that the local law may also generally enhance the powers of the county legislature, stated as follows:

[w]e must look to the effect that the local law has on the power of appointment to determine whether there has been any curtailment. . .The emphasis should not be placed on whether we believe one type of power of appointment is generally broader than another but whether an amendment to the existing power of appointment curtails any power inherent in the original appointment procedure. . . [T]he court must determine whether the local law curtails any power and, in finding that it does, the law must be held invalid (45 NY2d, 295, 408 NYS2d, 391-92; emphasis in original).

Thus, the Court found that, although the law gave the county legislature broader authority by permitting it to remove the manager at will, a referendum was required because it also curtailed the power of the legislature to bind successor legislatures.

Subsequently, in Hampton Heights, supra, the Appellate Division, Fourth Department, citing Municipal Home Rule Law, §23(2)(f) and Morin, supra, invalidated a city local law which authorized the mayor, who served a four-year term, to bind his successor by appointing members of the water supply board to five-years terms. In that case, there was no pre-existing authority to bind a successor mayor, and the court, in essence, held that the local law, in the absence of a mandatory referendum, improperly curtailed the power of a successor to appoint such board members.

In applying the principles of those two cases to the instant situation, we note that the proposed local law, on one hand, may be viewed as enhancing, rather than curtailing the mayor's appointment power. It enhances the mayor's power because, while the present charter already permits the mayor to appoint an engineer for a term which binds the appointing mayor's successor in office, the proposed local law would increase that power by allowing an appointment which binds successors over a longer period. However, the local law, at the same time, would also curtail the power of a successor mayor. Presently, a successor mayor may appoint a new city engineer after the expiration of the engineer's three year term. Under the proposed local law, that power would be curtailed since successor mayors would be bound by the appointing mayor's choice for a longer period. The local law would similarly curtail the common council's present power to consent to a new appointment every third year. It is, therefore, our opinion that the proposed local law is subject to mandatory referendum as required by Municipal Home Rule Law, §23(2)(f).

April 17, 1991
Jeffrey N. Mis, Esq., City Attorney
City of North Tonawanda