Does the mayor of a New York city have veto power over the common council's appointments to the local Industrial Development Agency?

Plain-English summary

The City of Dunkirk's IDA was established by special act (General Municipal Law § 890-a), with members appointed "by the governing body of the city of Dunkirk." The IDA is also subject to General Municipal Law § 856(2), which requires the governing body of the municipality to appoint members. General Municipal Law § 854(5) defines "governing body" as the board or body vested with legislative powers. The Dunkirk City Charter § 3.03 gives the mayor general authority to approve or veto any council ordinance or resolution (with an exception for resolutions on internal council procedures). The city attorney asked whether the mayor's veto applied to IDA appointments.

The AG concluded yes. The question is whether subjecting an appointment to executive approval undermines the state requirement that the legislative body make the appointment. The AG's prior opinions had already answered no: when an appointment is made by the legislative body subject to executive approval, the appointment is still considered made by the legislative body. The mayor's role is review and check, not initiation. The state requirement is satisfied.

The opinion also confirmed that appointments to an IDA are properly made by resolution, not by ordinance or local law. Collins v Schenectady drew that distinction: resolutions are for temporary or administrative actions; local laws and ordinances are for legislation. An appointment is a discrete administrative act suited to resolution form. Because the charter's veto power applies to "any ordinance or resolution," the IDA-appointment resolution falls within the veto scope.

Currency note

This opinion was issued in 1997. 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

What is an Industrial Development Agency?

A public benefit corporation authorized under General Municipal Law Article 18-A to promote local economic development through tax-exempt financing, real-estate transactions, and other incentives for industrial and commercial projects.

Why does state law require appointment "by the governing body"?

Industrial Development Agencies handle significant public-purpose resources (tax abatements, bond financing). The Legislature wanted appointments anchored in democratic accountability through the elected legislative body, not unilaterally controlled by an executive.

Does the mayor's veto thwart that goal?

The AG says no. A mayoral veto adds a second elected official's check on the appointment, not an executive substitute for legislative action. The appointment still originates in the council and counts as a legislative-body act.

Could the council override a mayoral veto?

That depends on the charter's veto-override procedure. Many city charters require a supermajority council vote to override. The AG opinion does not detail Dunkirk's override mechanism, but the standard structure would apply.

Can the council appoint by less formal means than a resolution?

The opinion says resolution is the appropriate form. Informal action (a motion, a letter, an oral vote) without a recorded resolution is not the right vehicle for an appointment.

Background and statutory framework

General Municipal Law Article 18-A governs Industrial Development Agencies. Section 856(2) requires appointment by the municipality's governing body. Section 854(5) defines "governing body" as the board or body vested with legislative powers. Section 890-a is the special act establishing the City of Dunkirk IDA, requiring appointment by the governing body of Dunkirk.

The Dunkirk City Charter § 3.03 gives the mayor general veto authority over council ordinances and resolutions, with a carve-out for council internal procedures.

Collins v Schenectady, 256 App Div 389 (3d Dept 1939), held resolutions appropriate for temporary or administrative actions like appointments, while ordinances and local laws are reserved for legislation.

1979 Op Atty Gen (Inf) 177 and Op Atty Gen (Inf) No. 90-70 reached the same conclusion as the 1997 opinion: appointment made by the legislative body subject to executive approval is still made by the legislative body.

Citations

• General Municipal Law §§ 856(2), 890-a (IDA appointment by governing body; Dunkirk IDA special act).
• Dunkirk City Charter § 3.03 (mayoral veto authority).
• Collins v Schenectady, 256 App Div 389 (3d Dept 1939) (resolution vs. local law).
• 1979 Op Atty Gen (Inf) 177; Op Atty Gen (Inf) No. 90-70 (legislative-body appointment with executive approval).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-31_pw.pdf

Original opinion text

GENERAL MUNICIPAL LAW, ART 18-A, §§ 856(2), 890-a; DUNKIRK CITY
CHARTER § 3.03.
The enactment of a resolution appointing members of an IDA,
subject to approval of the chief executive officer, is consistent
with provisions of State law.
July 23, 1997

Sheila Meck Hyde, Esq.
City Attorney
City of Dunkirk
Department of Law
City Hall
Dunkirk, NY 14048

Informal Opinion
No. 97-31

Dear Ms. Hyde:
You have asked whether the mayor of the City of Dunkirk has
veto power over appointments made by the common council to the
City of Dunkirk Industrial Development Agency (IDA).
The City of Dunkirk IDA was established by special act of
the State Legislature. General Municipal Law § 890-a. Its
members "shall be appointed by the governing body of the city of
Dunkirk". Id. The IDA is subject to the provisions of Title 1
of Article 18-A of the General Municipal Law which also provides
that the members of the IDA are to be appointed by the "governing
body of each municipality" and serve at the pleasure of the
appointing authority. Id., § 856(2). As you have pointed out,
section 854(5) of the General Municipal Law defines "governing
body" as the board or body vested with the legislative powers of
the municipality.
Under the Dunkirk City Charter, the mayor has the authority
to approve or veto any ordinance or resolution passed by the
common council except resolutions regulating the internal
procedures of the council. Dunkirk City Charter § 3.03. You
have inquired whether appointments to the IDA may be made by
less formal action than enactment of a resolution, and if a
resolution is necessary, whether it is subject to the mayor's
approval power.
Use of a resolution is the appropriate means to make
appointments and take other actions of a temporary nature. In
contrast, local legislation is enacted by ordinance or local law.
Collins v Schenectady, 256 App Div 389, 392 (3d Dept 1939).

2
We see no inconsistency between the Dunkirk City Charter
provision making resolutions subject to approval by the mayor,
and the provisions of the General Municipal Law which require
appointment of IDA members by the governing body of the city.
Where an appointment is made by the legislative body, subject to
approval of the chief executive, the appointment is considered to
be made by the legislative body. See, 1979 Op Atty Gen (Inf)
177; Op Atty Gen (Inf) No. 90-70.
We conclude that the enactment of a resolution appointing
members of an IDA, subject to approval of the chief executive
officer, is consistent 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