Can a NY city require its city council to confirm the mayor's appointments to the planning commission?

Subject

Planning commission appointment by the mayor subject to council confirmation

Plain-English summary

Note: the original "subject" line on this opinion was mistakenly indexed in the AG's database as referencing human service agencies (soup kitchens, drug treatment) when in fact the substance is about planning commission appointments. The slug reflects the database glitch; the opinion is about appointments.

The City of Schenectady's charter required that mayoral appointments to the city planning commission be confirmed by the city council. The deputy corporation counsel asked whether that charter provision conflicted with three state-law sources: General Municipal Law § 234 (which authorizes city planning commissions and says the ordinance creating one "shall specify the public officer or body" that appoints members), General City Law § 27 (which says planning board members "shall be appointed by the mayor or other duly authorized appointing authority"), and Municipal Home Rule Law § 11(2)(a) (which restricts charter amendments inconsistent with the charter's own amendment rules).

The AG concluded none of the three created a conflict.

On § 234: the language requiring the ordinance to specify who appoints is just a drafting requirement, not a ban on confirmation. The phrase "officer or body" gives the city a choice between mechanisms, not a rule that an officer must act alone.

On § 27: it expressly allows appointment by the mayor "or other duly authorized appointing authority." A mayoral appointment that is ratified by the council still counts as a mayoral appointment under settled AG and case law. Confirmation is a procedural overlay, not a substitution of appointing power.

On § 11(2)(a): that section restricts local laws amending the charter contrary to the charter's own amendment procedure. Nothing in the inquiry suggested the confirmation rule had been added in violation of those procedures, so the section was not triggered.

The AG closed with the doctrinal point that runs through several of the office's planning-commission opinions: when an executive appoints and the legislative body ratifies, the appointment is still treated as made by the executive (citing 1974 Op Atty Gen [Inf] 204 and Op Atty Gen [Inf] No. 90-70).

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 doesn't council confirmation count as the council "appointing" the members?

Under New York's executive-legislative framework, the appointment-and-confirmation model is the standard for many positions. The appointing power belongs to the executive who proposes the name; the legislative body's role is to approve or reject. The AG treats that arrangement as a single appointment by the executive, with the confirmation as a check, not as a separate appointing act by the legislature.

Could a city give appointment power entirely to the council, with no mayoral role?

Yes, under § 234. The "officer or body" language means the council itself can be the appointing body. Some New York cities do that. The choice between mayoral-with-confirmation, council-alone, or mayor-alone is a charter design question.

Does this opinion control on every planning-related appointment?

It addresses planning commission appointments. The same logic generally applies to other boards and commissions appointed under municipal law, but the specific enabling statute should be checked. Some statutes have unusual language about who has to appoint.

What about charter conflict with state law more generally?

Charter cities operate under a complex layering of home rule. A charter provision can validly differ from a general state law if it falls within a category of subjects the Municipal Home Rule Law lets cities legislate on. For appointments, qualifications, and procedures of municipal officers, home rule is generally permissive.

Statutory framework

General Municipal Law § 234 authorizes the creation of city planning commissions and requires that the creating ordinance or resolution specify the appointing officer or body.

General City Law § 27 sets default rules for planning board membership, including that members "shall be appointed by the mayor or other duly authorized appointing authority." The "or other duly authorized appointing authority" phrase is the key opening for council-confirmation models.

Municipal Home Rule Law § 11(2)(a) restricts the adoption of local laws that amend a city charter in ways contrary to the charter's own amendment rules. This is a procedural safeguard about how charter changes happen, not a substantive limit on what they can say.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-13_pw.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

GENERAL CITY LAW § 27; GENERAL MUNICIPAL LAW § 234; MUNICIPAL
HOME RULE LAW § 11(2)(a).

The appointment by the mayor of the City of Schenectady of
members of the planning commission, subject to confirmation by
the city council, is not inconsistent with provisions of State
law.

February 8, 1995

Paul H. Tocker, Esq.
Deputy Corporation Counsel
City of Schenectady
City Hall, Rm. 201
Schenectady, NY 12305-1938

Informal Opinion
No. 95-13

Dear Mr. Tocker:

You have asked whether provisions of the Schenectady City
Code, subjecting the appointment by the mayor of members of the
city planning commission to confirmation by the city council, is
consistent with provisions of State law.

You have indicated that under the City Code appointments to
the planning commission are required to conform with section 234
of the General Municipal Law and section 27 of the General City
Law. Under section 234, an ordinance or resolution creating a
city planning commission

shall specify the public officer or body of said municipality that shall
appoint such commissioners.

In our view, this language is simply a requirement that the
method of appointment be included in the resolution or ordinance.
The logical alternatives are appointment by an officer or board,
thus their inclusion in the statute. By its terms, section 234
does not prohibit an appointment subject to confirmation. In any
event, when an appointment is made by an executive and ratified
by the legislative body, the appointment is considered to be made
by the executive. See, 1974 Op Atty Gen (Inf) 204; Op Atty Gen
(Inf) No. 90-70.

Under section 27(1) of the General City Law,

[m]embers and the chairperson of such planning board shall be
appointed by the mayor or other duly authorized appointing
authority.

The authorization for appointment by another appointing authority
would permit an appointment by the mayor subject to ratification
by the legislative body. Further, as mentioned above, an
appointment by an executive with ratification by the legislative
body is considered to be an appointment by the executive.

You have also suggested that this appointment method
violates section 11(2)(a) of the Municipal Home Rule Law, which
establishes restrictions on the adoption of local laws. Under
that provision, a city may not adopt a local law which amends the
charter of the city "contrary to any provision of such charter
regulating its own amendment". You have not indicated that the
procedure by which the current method for appointing planning
commission members was added to the charter was inconsistent with
provisions of the charter governing its amendment.

We conclude that the appointment by the mayor of the City of
Schenectady of members of the planning commission subject to
confirmation by the city council is not inconsistent with
provisions of State law.

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