Does changing how the mayor is chosen in a small commission-run city require voter approval?

Subject

Transfer of power under city charter

Plain-English summary

The City of Sherrill (one of New York's smallest cities, in Oneida County) runs on a five-member city commission. The mayor is not elected directly by voters; the five elected commissioners pick a chairperson from among themselves after each election, and the chairperson serves as mayor. If no one gets a majority of the commissioners' votes, the commissioner with the highest vote total at the prior election becomes chairperson and mayor by default.

The city wanted to amend the charter to create a "vice-chair" position. The vice-chair would be the commissioner with the most seniority. If the commissioners deadlocked, the vice-chair (not the top vote-getter) would become chairperson and mayor.

The city attorney asked whether this amendment needed voter approval through a mandatory referendum. He focused on Municipal Home Rule Law § 23(2)(d), which requires a referendum to change the manner of election or succession to an elective office, and argued it should not apply because the mayor's office in Sherrill is not directly elective.

The AG sidestepped that question. Even if § 23(2)(d) did not apply, the amendment plainly fell under § 23(2)(f), which requires a referendum any time a local law "abolishes, transfers or curtails any power of an elective office." The commissioner who had the highest vote count was an elected official, and the amendment would transfer his or her power to serve as chairperson and mayor (in the deadlock scenario) to a different commissioner. Under the Court of Appeals' strict construction in Morin v Foster, any curtailment counts: courts do not balance the law's net effect on the legislative body.

Currency note

This opinion was issued in 1995. 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

Why does it matter whether § 23(2)(d) or § 23(2)(f) applies?

It does not for the bottom line; both require a mandatory referendum. The AG chose the cleaner path: he did not have to resolve whether the chair-and-mayor designation counted as a directly elective office, because § 23(2)(f) was triggered as long as any elective office (here, the commissioner who is the top vote-getter) lost a power.

What did Morin v Foster establish?

Morin v Foster, 45 NY2d 287 (1978), held that the mandatory-referendum requirement under what is now § 23(2)(f) is triggered whenever any power of an elective office is curtailed. The Court rejected a balancing test that would weigh enhancements against curtailments. Any curtailment alone, even if other parts of the same law increase the office's powers, triggers the referendum.

Could the city have done this through a public hearing without a referendum?

No. Under Municipal Home Rule Law § 23, a mandatory referendum is the procedure required for these categories of changes. A public hearing is generally a separate procedural step but does not substitute for the vote.

What about minor housekeeping changes to a charter?

Mandatory referendum applies only to the enumerated categories in § 23(2). Changes that do not abolish, transfer, or curtail elective-office powers (and do not fall in the other listed categories) can be adopted by ordinary local law, sometimes subject to permissive referendum if a petition is filed.

How does this affect commission-form cities specifically?

Sherrill's commission-form structure is unusual in New York. The reasoning here applies to any commission city: power transfers among commissioners' default roles are triggers for the referendum, because each commissioner holds an elective office whose powers are at stake.

Statutory framework

Municipal Home Rule Law § 23 lists categories of local laws that require mandatory referendums before they take effect. Two are at issue here:

• § 23(2)(d) covers local laws changing the manner of election of, or succession to, an elective office.
• § 23(2)(f) covers local laws that abolish, transfer, or curtail any power of an elective officer.

Section 23(2)(f) has been read strictly by the courts. Morin v Foster established that any curtailment, however slight, triggers the referendum requirement; the courts do not engage in net-effect balancing.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-8_pw.pdf

Original opinion text

MUNICIPAL HOME RULE LAW § 23.
A proposed amendment to the city charter that transfers
powers of a member of the city commission to be chairperson and
mayor is subject to a mandatory referendum.
February 3, 1995

Dennis K. McDermott, Esq.
City Attorney
City of Sherrill
Chase Manhattan Bank Building
112 Farrier Avenue
Oneida, NY 13421

Informal Opinion
No. 95-8

Dear Mr. McDermott:
You have asked whether Municipal Home Rule Law § 23(2)(d)
requires a mandatory referendum to approve an amendment to the
city charter concerning the law of succession to the office of
mayor where, under the city charter, the mayor is not elected by
the voters.
You have indicated that the City of Sherrill is governed by
a five-member city commission. Under the city charter, following
the election the five commissioners are to select from among
themselves a chairperson of the commission who is also the mayor
of the city. The city charter also provides that if no member of
the commission receives a majority vote to be chairperson and
mayor, the commission member receiving the greatest number of
votes at the last election of commissioners becomes the
chairperson and mayor of the city.
In 1971, the charter was amended to give commissioners
staggered terms. As a result, in the event the commissioners
were unable to choose (by majority vote) a chairperson and mayor,
only those commissioners who were elected at the prior election
would be eligible to serve as chairperson and mayor by receiving
the highest vote total.
An amendment is now proposed that would create the office of
vice-chair (and deputy mayor) to be filled by the commissioner
having the greatest seniority. The vice-chair would serve as
chairperson and mayor in the event the commissioners are unable,
by a majority vote, to choose a chairperson and mayor. You have
asked whether this local law amending the charter is subject to a
mandatory referendum under section 23(2)(d) in that it would
change the law of succession to the office of mayor. In your
view, section 23(2)(d) does not require a mandatory referendum in

2
this case because the office of mayor in the City of Sherrill is
not an elective office.
Without determining whether a mandatory referendum is
required under section 23(2)(d), we believe that the local law
clearly is subject to mandatory referendum under other
provisions. Under section 23(2)(f), any local law that
abolishes, transfers or curtails any power of an elective office
is subject to a mandatory referendum. The proposed amendment to
the city charter would, in the event the commissioners are unable
by majority vote to select a chairperson and mayor, transfer the
power of the highest vote getter to serve as chairperson and
mayor of the city. Instead, the vice-chair, held by the
commissioner with the most longevity, would act as mayor under
those circumstances. Section 23(2)(f) has been strictly
construed by the courts. Morin v Foster, 45 NY2d 287 (1978);
1983 Op Atty Gen (Inf) 93, 96; 1970 Op Atty Gen (Inf) 80. Any
time an elective officer's powers are abolished, curtailed or
transferred, notwithstanding that another board member's powers
are increased, a mandatory referendum is required. The Court of
Appeals has precluded a balancing approach, i.e., weighing the
provisions enhancing the legislature's powers with those that
curtail it to determine which predominates. Rather, the Court
has held that
[t]he Constitution requires that a permissive referendum be held
where the law curtails 'any power' of an elective official (art IX, § 1,
subd [h], par [2]). We are not free to balance the various aspects of a
law but must only determine whether any power has been curtailed.
Any claimed enhancement of some legislative powers does not
negate the curtailment of others. We must reject, therefore, the
appellants' balancing approach and enforce the constitutional
requirements.

Morin, supra, at p 294.
We conclude that a proposed amendment to the city charter
that transfers powers of a member of the city commission to be
chairperson and mayor is subject to a mandatory referendum.
The Attorney General renders formal opinions only to
officers and departments of State government. This perforce is
an informal and unofficial expression of the views of this
office.
Very truly yours,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions