William W. Zarr, Esq. Assistant Corportion Counsel, Niagara Falls
You have informed us that the Niagara Falls City Charter Commission intends to present two charter revisions as alternate proposals. The voters will be asked to vote separately on propositions one and two. You have presented the following scenario for our consideration. In the event that proposition one receives 700 "yes" votes and 300 "no" votes, while proposition two receives 100 "yes" votes and 900 "no" votes, has alternative proposition number one been approved? Your concern is that the total number of "no" votes cast for both propositions one and two constitutes a majority of the total votes cast on both propositions.
Section 36 of the Municipal Home Rule Law establishes the procedure for formation of a city charter commission and for the approval by the voters of a charter or amendment of an existing charter presented by the commission.
"The charter commission may, however, require that its proposed charter be submitted in two or more parts so arranged that corresponding parts of the existing charter shall remain in effect if one or more of such parts are not adopted, or may in lieu of a new charter submit a revision of the existing charter in one or more amendments and may also submit alternative charters or amendments or alternative provisions to supersede designated portions of a proposed charter or amendment if adopted. In such case the charter commission shall prescribe the form of the questions to be submitted, which shall be such as clearly to indicate the effect of their approval" (Municipal Home Rule Law, § 36[5][b]).
"If any question submitted by the charter commission receives the affirmative vote of a majority of the qualified electors of the city voting thereon, the proposal submitted thereby shall take effect as specified therein and the new charter or the amendment or amendments to the existing charter as so proposed shall become operative as prescribed therein; except that if there be a conflict between the provisions of two or more proposals approved by the electors at the same election, the proposal receiving the largest number of affirmative votes shall prevail to the extent of such conflict" (id., § 36[5][d]).
Thus, a charter commission may present amendments to the city charter as alternate proposals. The commission is required to prescribe the form of the questions to be submitted, which must clearly indicate the effect of voter approval. It seems clear under section 36(5)(d) that any question receiving the affirmative vote of a majority of the qualified voters is approved. In the event two alternative proposals are both approved, the one receiving the largest plurality would prevail. Thus, under the facts you have presented, proposition number one would be approved while proposition number two would be disapproved. Because each question is considered independently by the voters, it makes no difference that the total negative votes constitutes a majority of the total votes cast.
We conclude that a city charter commission may present amendments to a city charter as alternate proposals. Each proposal is considered separately and the one receiving a majority of the votes cast is approved. In the event both proposals receive a majority vote, the one receiving the largest plurality is approved.