Does the Nassau County Charter's mandatory-referendum requirement for local laws affecting elective officers still stand, even though the State Constitution now calls only for a permissive referendum?

Plain-English summary

Nassau County's Charter, enacted in 1937, contains in § 155 a mandatory-referendum requirement: a local law that abolishes, transfers, or curtails any power of an elective officer cannot become operative or effective unless approved by the county's electors. The current State Constitution, by contrast, calls only for a permissive referendum on such local laws (NY Const Art IX, § 1(h)(2)). The Nassau County Attorney asked the AG whether the Charter provision still controls, given the constitutional shift.

The AG concluded that § 155 still controls, by virtue of the savings clause in Article IX, § 3(b) of the State Constitution.

The constitutional history. When Nassau's Charter was enacted in 1937 (as Chapter 618 of the Laws of 1937), the State Constitution then in effect (NY Const Art III, § 26(4) (1929)) required a referendum for local laws that abolished, transferred, or curtailed any power of an elective officer. Section 155 of the Charter mirrored that constitutional requirement. So at enactment, § 155 was fully consistent with State constitutional law.

The 1938 Constitution and later revisions changed the underlying constitutional rule. The current Art IX, § 1(h)(2) provides that, after a county adopts an alternative form of county government, any amendment that abolishes, curtails, or transfers to another county officer or agency any power of an elective county officer is subject to a "permissive referendum as provided by the legislature," not a mandatory one. That's the gap between the Charter (mandatory) and the Constitution (permissive).

The savings clause. Article IX, § 3(b) of the State Constitution provides: "The provisions of this article shall not affect any existing valid provisions of acts of the legislature or of local legislation and such provisions shall continue in force until repealed, amended, modified or superseded in accordance with the provisions of this constitution."

The AG read § 3(b) straightforwardly. When the 1938 Constitution was adopted, the 1937-era Charter § 155 was an "existing valid provision" of legislation. Under § 3(b), it continued in force despite the new constitutional requirement that, for newly enacted provisions, only permissive referenda are required. The Charter provision remained valid through subsequent constitutional revisions because the current § 3(b) (from the 1963 revision) contains the same savings clause structure.

The bottom line for Nassau. Local laws that abolish, transfer, or curtail any power of an elective officer in Nassau County require a mandatory referendum under Charter § 155, not just a permissive referendum under the current Constitution. The Nassau Charter provision is the more demanding rule, and it continues to apply.

The AG declined to take up the County Attorney's separate question about whether particular amendments to the Charter would constitute an abolition, transfer, or curtailment of power. That question required construing local enactments, which the AG's long-standing policy reserves to local officials familiar with local conditions and local legislative intent. The AG opinions construe State law governing local-government powers; interpreting the local Charter itself is for the county.

Currency note

This opinion was issued in 1999. 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's the difference between a mandatory referendum and a permissive referendum?

A mandatory referendum requires the local law to go to the voters before it can take effect. A permissive referendum lets the law go into effect, subject to being challenged by petition signed by a required number of voters within a stated period; if no qualifying petition is filed, the law stands. Mandatory referenda are more protective of voter input; permissive ones tilt toward administrative efficiency.

Why does Nassau still have the stricter rule?

Because Charter § 155 was enacted in 1937 and was constitutionally valid then, the State Constitution's savings clauses through 1938 and 1963 preserved it. The Legislature can change § 155 by amending Chapter 618 of the Laws of 1937, and Nassau itself can change it through a charter revision process. But absent affirmative repeal or amendment, the 1937 rule survives.

Could other counties have similar grandfathered provisions?

Yes, depending on when each county's charter was enacted and what each charter says. The AG's analytical framework (was the provision constitutionally valid when enacted; does it remain in force, unrepealed, under the savings clauses) applies generally. Each county's charter would have to be analyzed on its own text.

Does this opinion construe Charter § 155 itself?

No. The AG addressed only the State-law question of whether the Charter provision is still in force. Whether any particular amendment falls within § 155's "abolishes, transfers or curtails" language is a local-law question that local officials decide.

Does the savings clause work the same way for cities and villages?

Article IX, § 3(b) applies to all "existing valid provisions of acts of the legislature or of local legislation." City charters, village charters, and town local laws all benefit from the same preservation principle, subject to subsequent repeal or amendment. The mechanics depend on the specific local enactment and its enactment date.

Background and statutory framework

Article IX of the New York Constitution is the home-rule article, restructured significantly in 1963. Section 1(h)(2) sets the current rule for charter amendments affecting elective officers (permissive referendum). Section 3(b) preserves existing valid local enactments that would otherwise be inconsistent with the new constitutional regime.

The Nassau County Charter dates to L 1937, ch 618. Chapter 618 was a major piece of State enabling legislation that gave Nassau (and earlier, other counties) the framework for alternative forms of county government. Charter § 155 mirrored the then-current 1929 constitutional language requiring referendum approval.

Municipal Home Rule Law § 34(4) was cited as part of the broader framework but did not do core work in the opinion. The savings clause does the heavy lifting.

The AG's opinion fits a pattern: when state-constitutional revisions change the rule for new enactments, savings clauses preserve preexisting provisions. The result can be a patchwork (different counties with different rules), but the patchwork is the deliberate consequence of constitutional drafting choices.

Citations

• NY Const Art IX, § 1(h)(2) (current rule: permissive referendum for charter amendments affecting elective officers).
• NY Const Art IX, § 3(b) (savings clause preserving existing valid local provisions).
• NY Const Art III, § 26(4) (1929) (predecessor constitutional referendum requirement).
• Municipal Home Rule Law § 34(4).
• L 1937, ch 618 (enabling legislation for Nassau County Charter).
• Nassau County Charter § 155 (mandatory referendum provision).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_99-4_pw.pdf

Original opinion text

Opn. 99-04
NY CONST, ART IX, §§1(h)(2), 3(b); MUNICIPAL HOME RULE LAW §34(4); L1937, CH618;
NASSAU COUNTY CHARTER § 155.
Under the savings clause in article IX, section 3(b) of the State Constitution, section 155 of the Nassau
County Charter requires a mandatory referendum for local laws that abolish, transfer or curtail any
power of an elective officer.
January 29, 1999
Owen B. Walsh, Esq.
County of Nassau
Office of the County Attorney
Nassau County Executive Building
One West Street
Mineola, New York 11501-4820

Informal Opinion
No. 99-04

Dear Mr. Walsh:
You have requested an opinion regarding whether section 155 of the Nassau County Charter,
which requires a mandatory referendum for local laws that abolish, transfer or curtail any power of an
elective officer, is consistent with State law. While your letter also raises the issue whether certain
amendments to the Charter constitute an abolition, transfer or curtailment of power, you have agreed to
limit your inquiry to the first question. The second question would require that we construe provisions of
law enacted by the County Legislature. We explained that this would be contrary to our long-standing
policy to refrain from interpreting local enactments, a role which falls within the province of local
officials familiar with local conditions and local legislative intent. Opinions of the Attorney General
construe provisions of State law governing the powers of local governments and their officials.
Section 155 of the Nassau County Charter provides, in pertinent part, as follows:
Local laws subject to mandatory referendum. No such local law shall become
operative or effective unless and until the same is adopted by the electors of such county . . .
if it . . . abolishes, transfers or curtails any power of an elective officer . . . .
The State Constitution provides that:
After the adoption of an alternative form of county government [county charter] by a
county, any amendment thereof by act of the legislature or by local law which . . . abolishes,
curtails or transfers to another county officer or agency any power of an elective county
officer . . . shall be subject to a permissive referendum as provided by the legislature. NY
Const, art IX, § 1(h)(2).
These two provisions are inconsistent in that the Nassau County Charter requires a mandatory
referendum whereas the State Constitution calls for a permissive referendum as defined by State law.1
Article IX, section 3(b) of the State Constitution, however, contains a savings clause which provides that
"[t]he provisions of this article shall not affect any existing valid provisions of acts of the legislature or
of local legislation and such provisions shall continue in force until repealed, amended, modified or

superseded in accordance with the provisions of this constitution." Therefore, we must determine
whether section 155 of the Nassau County Charter falls within this savings clause.
Initially, section 155 was enacted by the State Legislature as part of Chapter 618 of the Laws of
1937. Section 155 derives from a prior provision of the State Constitution in effect at the time the
Charter provision was enacted which provided that:
After the adoption of a form of government by a county pursuant to subdivision two
of this section [reference to alternative forms of county government, also called charters], ...
no law, special or local in its terms or in its effect, which . . . abolishes, transfers or curtails
any power of an elective officer . . . shall become effective without adoption by the electors
of such county . . . . NY Const, art III, §26(4) (1929).
This provision required a referendum for local laws which abolished, transferred or curtailed any
power of an elective officer. Accordingly, section 155 of the current Nassau County Charter was
consistent with and derives from the New York State Constitution.
The County Charter's mandatory referendum provision in section155 was consistent with State
law when enacted, and was preserved by a savings clause in article IX, section 3 of the NewYork
Constitution (1938). The Charter provision continued to be preserved during subsequent years. The
current provision of the Constitution, article IX, section3(b) (1963), contains a savings clause
authorizing existing valid local legislation to continue in force until repealed, amended, modified or
superseded. Therefore, under section155 of the County Charter, a mandatory referendum is required for
local laws which abolish, transfer or curtail any power of an elective officer.
We conclude that pursuant to the savings clause in article IX, section 3(b) of the State
Constitution, section 155 of the Nassau County Charter requires a mandatory referendum for local laws
that abolish, transfer or curtail any power of an elective officer.
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
YVONNE M. HOVE
Assistant Attorney General
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