Distinguishing between a "mandatory referendum" and an "advisory referendum" when seeking voter approval of a proposed local law

The Council of the City of Rochester (Council) adopted Local Law No. 4 of 2019  [Local Law] to amend the City Charter. The Local Law provided the holding of a referendum for the November 2019 general election that, if adopted, would:

1. Remove the Board of Education of the Rochester City School District [Board] Commissioners from a list of "Elective officers";

2. Remove the members of the Boards' term of office from City Charter; and

3. Discontinue providing for the "Salaries of School Board members."

The referendum further provided that the Local Law would take effect only after both approval by [a] an affirmative vote of "a majority of qualified electors" voting on the referendum and [b] the enactment of appropriate enabling amendments to the Education Law.

The Board initiated a CPLR Article 78 proceeding and declaratory judgment action seeking a declaration that the Local Law was invalid and that the referendum would be void as constituting an "advisory referendum." The Board also asked the court to issue a permanent injunction barring the City from placing the referendum on the November ballot.

Supreme Court granted the relief sought by the Board, holding that the State "unequivocally occupies the entire field of public education, thus preempting the Local Law and rendering the referendum impermissibly advisory." Declaring that the Local Law was a "void advisory referendum," the court issued a permanent injunction barring the advisory referendum from being included on the ballot for the November general election.

The City appealed the Supreme Court's ruling but the Appellate Division affirmed the lower court's decision. Citing Mills v Sweeney, 219 NY 213, decided in 1916, the Appellate Division explained that any local law that "[a]bolishes an elective office" or "reduces the salary of an elective officer during his [or her] term of office" is subject to the approval of a mandatory referendum.*

In contrast, said the court, an "advisory referendum," that is a referendum that lacks legal effect or consequence, is not permitted in the absence of express constitutional or statutory authority providing for such a referendum.

As the Local Law conditioned its effectiveness on subsequent action by the New York State Legislature, the Appellate Division said that this stipulation "strips the referendum of any binding legal effect" and thus is "impermissibly advisory."

In addition, the Appellate Division observed that Supreme Court "correctly noted" that a local government may not legislate in areas "where the State has evidenced its intent to occupy the field" and it is well established that the State has preempted local action in the field of public education.** 

The Appellate Division then unanimously affirmed the Supreme Court's judgment, without costs.

* See Municipal Home Rule Law §23[2][e].

** See New York State Constitution Articles IX §3[a][1] and Article XI, §1; Education Law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06449.htm