Hon. Davis M. Etkin President and Chairman of the Board, Capital District Regional Off-Track Betting Corporation
Your assistant general counsel has asked whether a county legislative body opting to have its county participate in a regional off-track betting corporation on its own motion may call for a referendum on the decision to participate.
The Regional Off-Track Betting Corporation Law provides that a county may opt to participate in regional off-track betting by "enacting enabling legislation" (McKinney's Unconsolidated Laws, § 8113 [2-a]). "Enabling legislation" is defined as a "local law, ordinance or resolution subject to a permissive referendum pursuant to the municipal home rule law" (id., § 8112[11]).
The Municipal Home Rule Law does not authorize permissive referenda except in the case of villages (§ 24 [1] [b]), apportionment legislation (§ 24[2] [j] [(2)]), and county charter amendments (§ 34[4]). A "permissive referendum" is one that the legislative body may call for and that the voters may petition for if the legislative body does not call for the referendum. (See County Law, § 101; Town Law, §§ 90, 94; Village Law, §§ 9-900, 9-908). The Municipal Home Rule Law authorizes mandatory referenda (§ 23) and referenda on petition (§ 24). Presumably, the drafter of the definition of enabling legislation used "permissive referendum" inadvertently. This is an easy slip to make because "permissive" is an antonym for "mandatory" and is used in this sense in the County Law (see §§ 100 and 101; also, for example, Village Law, § 5-506 [1] [d]).
Since this definition refers to a referendum "pursuant to" the Municipal Home Rule Law and since section 24 of that law sets forth the procedural requirements for all referenda other than apportionment legislation and county charter amendments, it follows that the only referendum permitted by the Regional Off-Track Betting Corporation Law is a referendum on petition. It also follows that "enabling legislation" takes effect 45 days after passage unless a valid petition is filed (Municipal Home Rule Law, § 24; Unconsolidated Laws, § 8112 [2] and [2-a]). Of course, the county legislative body could repeal the enabling legislation during the 45-day period.
We conclude that the enabling legislation by which a county opts to participate in a regional off-track betting corporation takes effect without a referendum unless a valid petition for a referendum is filed in accordance with section 24 of the Municipal Home Rule Law. A county legislative body is not authorized to call for a referendum.