Once a New York village transfers its elections to the county board of elections, can the village take them back by resolution, and does that require a referendum?

Plain-English summary

Some years earlier, the Village of Fredonia had adopted a resolution under Election Law § 15-104(1)(c) handing conduct of village elections over to the Chautauqua County Board of Elections. The village now wanted to take its elections back. The village attorney asked whether the village could repeal the original resolution and whether the repeal would have to be put to a referendum.

The AG concluded the village could repeal by resolution and did not need a referendum. The reasoning rested on a basic principle: in the absence of an express statutory restriction, the power to enact legislation includes the power to repeal it. Farrington v. Pinckney from the Court of Appeals stated that rule, and the Appellate Division applied it in Boynton Suites v. Board of Assessment Review of Plattsburgh: a city that "opted in" to a tax exemption by resolution could "opt out" the same way, without explicit repeal authority.

Election Law § 15-104(1)(c) does not say the transfer is irrevocable, so a repealing resolution by the village board was authorized. Section 15-104(1)(c) does, however, make the original transfer resolution subject to a permissive referendum under Village Law §§ 9-900 to 9-916. The question was whether the repeal carried the same referendum exposure.

The AG concluded no. Authority to hold a local referendum has to come from state law (Op. Atty. Gen. (Inf.) No. 99-9). No state law subjects a repeal of this kind of resolution to either permissive or mandatory referendum. The AG had reached the same result in Op. Atty. Gen. (Inf.) No. 85-15 for the repeal of a county off-track betting resolution. And although Municipal Home Rule Law § 23(2)(e) requires a mandatory referendum for local laws changing the method of nominating or electing an officer, that section applies only to "local laws," which Municipal Home Rule Law § 2(9) expressly defines to exclude resolutions. The court decisions in Biffer v. City of Saratoga Springs and Brittain v. Village of Liverpool followed the same line.

A footnote in the opinion adds a useful operational note: if the village conducts its own elections, Article 15 of the Election Law governs. If it transfers to the board of elections, Article 15 applies only to the extent consistent with the rest of the Election Law. Nomination timing and absentee voting procedures differ between the two regimes.

Currency note

This opinion was issued in 2002. 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

Q: What was Election Law § 15-104(1)(c) doing?
A: It authorized a village board of trustees, by resolution and subject to a permissive referendum, to put the conduct of village elections in the hands of the county board of elections. Once that happens, the board of elections is required to conduct village elections "[u]pon approval of such a resolution."

Q: Why was the original transfer subject to permissive referendum but the repeal not?
A: Because the Election Law expressly says the original transfer is subject to permissive referendum. It says nothing about repeal. And no other state law subjects this kind of repeal to a referendum. A municipality cannot hold a referendum unless state law authorizes one.

Q: What's the difference between a local law and a resolution for referendum purposes?
A: Big. Municipal Home Rule Law § 23 imposes mandatory referendum requirements on certain "local laws," including changes to officer-election methods. But the definition of "local law" in § 2(9) expressly excludes resolutions. So a resolution can do things that would trigger § 23 if done by local law, without exposing itself to the same mandatory-referendum requirement.

Q: Where else has this principle come up?
A: The AG cited several prior opinions: Op. Atty. Gen. (Inf.) No. 93-28 (abolition of town position by resolution did not need mandatory referendum); Op. Atty. Gen. (Inf.) No. 86-64 (abolition of civil service commission, where creation was by Civil Service Law); Op. Atty. Gen. (Inf.) No. 82-71 (salary reduction by resolution under Village Law). All confirmed that resolution-based actions authorized by specific statutes escape the Municipal Home Rule Law § 23 referendum requirement.

Q: Could the village have done this by local law instead?
A: It could have, but then the analysis under Municipal Home Rule Law § 23 would have been different. The AG explicitly said it did not need to reach that question because repeal by resolution was authorized by Election Law § 15-104(1)(c).

Background and statutory framework

Election Law § 15-104(1)(c) sits inside Article 15 (village elections). Article 15 lets villages either conduct their own elections or transfer the conduct to the county board of elections. The transfer is initiated by village board resolution and is subject to a permissive referendum under Village Law §§ 9-900 to 9-916.

When the trustees later decide they want elections back, the path is the inherent repeal authority recognized in Farrington v. Pinckney and Stetter v. Town Bd. Boynton Suites confirmed that explicit repeal authority is not required when the underlying enactment was authorized by a specific statute. The principle is consistent with the Statute of Local Governments § 10(1) general grant of power to adopt, amend, and repeal.

The referendum analysis turns on two doctrines. First, municipalities cannot hold referenda unless state law authorizes them. Second, Municipal Home Rule Law § 23 imposes mandatory referendum requirements only on certain "local laws," and the statutory definition of "local law" expressly excludes resolutions. So a resolution authorized by a specific statute is doubly insulated from § 23.

Citations and references

Statutes:

• Election Law § 15-104(1)(c) (village transfer of election conduct)
• Municipal Home Rule Law § 2(d) (home rule definitions)
• Municipal Home Rule Law § 2(9) (definition of local law excludes resolution)
• Municipal Home Rule Law § 23 (mandatory referenda for local laws)
• Municipal Home Rule Law § 24 (permissive referenda)
• Village Law §§ 9-900 to 9-916 (permissive referendum procedure)
• Statute of Local Governments § 10(1) (repeal authority)

Cases:

• Stetter v. Town Bd., 6 A.D.2d 1006 (4th Dep't 1974) (power to enact implies power to repeal)
• Farrington v. Pinckney, 1 N.Y.2d 74 (1956) (foundational repeal-authority case)
• Daugherty v. County of Oneida, 22 A.D.2d 111 (4th Dep't 1964) (repeal of selection resolution)
• Boynton Suites v. Board of Assessment Review of Plattsburgh, 274 A.D.2d 926 (3d Dep't 2000) (rescission of tax exemption resolution)
• Wright v. Town Bd., 169 A.D.2d 190 (3d Dep't 1991), appeal denied, 79 N.Y.2d 751 (1991) (adopt/amend/supersede authority)
• Paradis v. Town of Schroeppel, 289 A.D.2d 1027 (4th Dep't 2001) (existing legislation amended by same procedure)
• Naftal Assocs. v. Town of Brookhaven, 221 A.D.2d 423 (2d Dep't 1995) (same)
• Biffer v. City of Saratoga Springs, 279 A.D.2d 749 (3d Dep't 2001) (mandatory referendum not required for resolution)
• Brittain v. Village of Liverpool, 172 Misc. 2d 201 (Sup. Ct. 1997) (same)

Prior AG opinions:

• Op. Atty. Gen. (Inf.) No. 81-28 (repeal authority)
• Op. Atty. Gen. (Inf.) No. 82-71 (resolution-based salary reduction)
• Op. Atty. Gen. (Inf.) No. 85-15 (repeal of OTB resolution)
• Op. Atty. Gen. (Inf.) No. 86-64 (abolition of civil service commission)
• Op. Atty. Gen. (Inf.) No. 91-40 (salary reduction by resolution)
• Op. Atty. Gen. (Inf.) No. 93-28 (abolition of town position)
• Op. Atty. Gen. (Inf.) No. 99-9 (referendum authority must come from state law)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2002-19_pw.pdf

Original opinion text

ELECTION LAW § 15-104(1)(c); MUNICIPAL HOME RULE LAW §§ 2(d), 23, 24; VILLAGE LAW §§ 9-900 - 9-916.

A village may regain conduct of its elections by repealing by resolution the resolution transferring conduct of the elections to the county board of elections. Repeal of the resolution by resolution is not subject to mandatory or permissive referendum.

December 9, 2002

Samuel L. Drayo, Jr., Esq.
Village Attorney
Village of Fredonia
31 W. Main Street
P.O. Box 345
Fredonia, New York 14063

Informal Opinion
No. 2002-19

Dear Mr. Drayo:

You have requested an opinion on whether, after adopting a resolution requiring that the county board of elections conduct village elections, pursuant to Election Law § 15-104(1)(c), a village may subsequently resume the conduct of its elections. We believe that a village is authorized, after adopting an appropriate resolution, to resume conducting its elections.

The relevant provision of the Election Law is found in Article 15, pertaining to village elections:

The board of trustees of a village may adopt a resolution, subject to a permissive referendum as provided in article nine of the village law, providing that village elections shall be conducted by the board of elections.

Election Law § 15-104(1)(c). A village is therefore clearly authorized to transfer the conduct of its elections to the county board of elections; the board of elections must conduct the village's elections upon the adoption of such a resolution by the village board of trustees, and any referendum on petition. Id. ("Upon approval of such a resolution . . . the county board of elections shall conduct all village elections . . . ." (emphasis added)).

The question, then, is whether a village is authorized to resume conducting its elections after deciding to have the county board of elections conduct them. We believe that it is, and that such authority is a dimension of its power to repeal legislation.

The grant of authority to enact local legislation includes the authority to repeal that legislation, unless that power is restricted. See Stetter v. Town Bd., 6 A.D.2d 1006 (4th Dep't 1974) (power to enact necessarily implies power to repeal) (quoting Farrington v. Pinckney, 1 N.Y.2d 74 (1956)); Daugherty v. County of Oneida, 22 A.D.2d 111 (4th Dep't 1964) (having made one choice under specific statutory authority, county board of trustees could repeal resolution making selection and make another choice); Op. Atty. Gen. (Inf.) No. 81-28. See also Statute of Local Governments § 10(1) (local governments are authorized to adopt, amend, and repeal resolutions in the exercise of functions, powers, and duties); see generally Farrington v. Pinckney, 1 N.Y.2d 74, 82 (1956).

In its specific grant of authority to village boards of trustees to adopt a resolution transferring the conduct of elections to the county board of elections, the Legislature did not restrict the board's repeal of that resolution. In Boynton Suites v. Board of Assessment Review of Plattsburgh, 274 A.D.2d 926 (3d Dep't 2000), the court specifically addressed the issue of whether express authority to repeal a resolution was necessary when the resolution was enacted pursuant to specific statutory authority. In that case, the common council of the city of Plattsburgh adopted a resolution by which the city "opted in" to a real property tax exemption authorized by state statute. The city subsequently passed a resolution rescinding the original resolution. In its decision, the court rejected the argument that the city exceeded its authority by repealing the original resolution in the absence of explicit authority to do so; the court stated,

[o]nce [the city] ha[s] exercised that option [to enact local legislation], the statute does not preclude [it] from withdrawing the exemption by appropriate action. . . . "[L]ocal governments have the authority to adopt, amend, change or supersede laws so long as the 'new' legislation is not inconsistent with the provisions of the Constitution or any general law."

Id. at 927 (quoting Wright v. Town Bd., 169 A.D.2d 190, 193 (3d Dep't 1991), appeal denied, 79 N.Y.2d 751 (1991)).

We believe that this analysis applies to the instant inquiry: the Legislature granted to villages the power to decide that the county board of elections will conduct the village elections. See Election Law § 15-104(1)(c). The Legislature placed no limitations in Election Law § 15-104(1)(c) on a village board of trustees' general power to repeal the board's previous action. Repeal by resolution is appropriate because enactment by resolution is authorized. Cf. Paradis v. Town of Schroeppel, 289 A.D.2d 1027 (4th Dep't 2001), rearg. denied, __ A.D.2d __, 742 N.Y.S.2d 592 (App. Div. 4th Dep't 2002) (existing legislation must be amended or repealed by same procedure used to enact it); Naftal Assocs. v. Town of Brookhaven, 221 A.D.2d 423 (2d Dep't 1995) (same); see also Op. Atty. Gen. (Inf.) No. 91-40 (salaries of town board members established by resolution may be reduced by resolution). We believe that the authority to reclaim those elections by enacting a resolution repealing the resolution by which conduct of the elections is transferred was inherent in the power granted by Election Law § 15-104(1)(c). We are not aware of any provision of the Constitution or of general law with which the repeal of the resolution would be inconsistent. Accordingly, we conclude that it lies within a village's power to repeal by resolution the resolution by which it transferred the conduct of its elections to the board of elections, and thus reclaim the conduct of its own elections.

We also believe that repeal of the resolution by resolution would not be subject to either permissive or mandatory referendum. The resolution providing that the village elections will be conducted by the board of elections is subject to permissive referendum conducted as provided in Village Law §§ 9-900 to 9-916. Election Law § 15-104(1)(c). The principle that a referendum held by local government must be authorized by State law is well established. See, e.g., Op. Atty. Gen. (Inf.) No. 99-9. As we have concluded in prior opinions, the fact that the Legislature has provided that enactment of local legislation is subject to permissive referendum does not necessitate that the repeal of that resolution also be by referendum. See Op. Atty. Gen. (Inf.) No. 85-15 (repeal of local law authorizing county participation in regional off-track betting corporation not subject to referendum although enactment was subject to referendum on petition). Rather, a municipality must still be authorized by state law to conduct a referendum for a repealing resolution. Id. We find no statutory authority for submitting the repealing resolution, if adopted, to a mandatory or permissive referendum. See Municipal Home Rule Law §§ 23, 24; Village Law §§ 9-900 - 9-916; Election Law § 15-104.

We note that although Municipal Home Rule Law § 23(2)(e) requires a mandatory referendum if a local law changes the method of nominating or electing an elective officer, which repeal of the resolution arguably does, the home rule definition of "local law" expressly excludes a resolution. Municipal Home Rule Law § 2(9). We have previously found that municipal action authorized by a specific state statute need not be by local law subject to mandatory referendum, although the same action would be subject to enactment by local law and mandatory referendum if the statutory authority relied upon was the Municipal Home Rule Law. Op. Atty. Gen. (Inf.) No. 93-28 (abolition of town position by resolution authorized by Town Law; mandatory referendum pursuant to Municipal Home Rule Law § 23 not required); Op. Atty. Gen. (Inf.) No. 86-64 (abolition of civil service commission not subject to mandatory referendum if creation of commission was pursuant to Civil Service Law); Op. Atty. Gen. (Inf.) No. 82-71 (reduction in salary adopted by resolution as authorized by Village Law not subject to mandatory referendum although it would be if salary had been adopted by local law under Municipal Home Rule Law). This principle is established by case law as well. See Biffer v. City of Saratoga Springs, 279 A.D.2d 749, 751 (3d Dep't 2001) (mandatory referendum pursuant to Municipal Home Rule Law § 23 not required when transfer of city department was pursuant to resolution rather than local law); Brittain v. Village of Liverpool, 172 Misc. 2d 201, 210 (Sup. Ct. 1997) (abolition of powers of elective officer not subject to mandatory referendum pursuant to Municipal Home Rule Law § 23 when action taken by other than local law). Because we are of the opinion that the repeal by resolution is authorized by Election Law § 15-104(1)(c), we need not reach the issue of whether, if conducted by local law, repeal would constitute an action subject to the referendum requirements of Municipal Home Rule Law § 23.

We therefore conclude that the village may regain conduct of its elections by repealing by resolution the resolution transferring conduct of the elections to the county board of elections. Repeal of the resolution by resolution is not subject to mandatory or permissive referendum.

The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of the views of this office.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
in Charge of Opinions

Footnote: If a village conducts its own elections, the provisions of Article 15 of the Election Law, relating to village elections, apply, and only those provisions of the remainder of the Election Law that are consistent with Article 15 also apply. Election Law § 15-100. If a village adopts a resolution requiring the board of elections to conduct the village's elections, however, then the provisions of Article 15 apply only to the extent these provisions are not inconsistent with the remaining provisions of the Election Law. Id. Both (1) the manner and times for making nominations and (2) proceedings relating to absentee voting are matters to which different provisions would apply depending on whether a resolution transferring conduct of the election was adopted. Id.