Requestor: Ellen Berkowitz, Esq., Principal Assistant Town Attorney Town of Huntington Town Hall 100 Main Street Huntington, N Y 11743-6990
Written by: James D. Cole, Assistant Attorney General in Charge of Opinions
You have asked that we construe section 40 of the Municipal Home Rule Law, dealing with requests by local governments for enactment of special laws relating to their property, affairs or government.
As a matter of background, the Legislature may act by special law with respect to the property, affairs or government of a local government only upon a home rule request by the affected local government. N Y Const, ArtIX, § 2(b)(2). In the City of New York, a certificate of necessity from the Governor is required. Ibid. Section 40 establishes the procedure for a home rule request.
You have requested our opinion as to the number of town board votes needed to make a home rule request in two situations — first, where the supervisor makes the home rule request and, second, where he does not.
Under section 40, "the supervisor in the case of a town with the concurrence of the legislative body of such local government, or the legislative body by a vote of two-thirds of its total voting power without the approval of such officer" may request that the Legislature pass a special law relating to its property, affairs or government. Under this provision, a home rule request by the supervisor must be approved by the legislative body. This language implies normal legislative action through a majority vote. The Constitution states that the home rule request must be "concurred in by the majority of such membership". Id., Art IX, § 2(b)(2). It is the general rule that approval is achieved by the majority vote of the total membership of a board. General Construction Law § 41; 1987 Op Atty Gen (Inf) 67. The supervisor would be acting in two capacities, as the executive making the request and as a member of the governing body.
If the supervisor does not make a home rule request, the legislative body may make the request "by a vote of two-thirds of its total voting power". Id., § 40. "Two-thirds of the total membership" of the town board is necessary to make a request. Emphasis supplied; N Y Const, ArtIX, § 2(b)(2); see also, 1987 Op Atty Gen (Inf) 67 and 1980 Op Atty Gen (Inf) 150.
Total membership means the membership of the body were there no vacancies and were none of the officers disqualified from acting. General Construction Law § 41; 1980 Op Atty Gen (Inf) 150.
We conclude that if the supervisor of a town makes a home rule request, the town board can approve the request through a majority vote of its total membership. If the supervisor fails to make a home rule request, a two-thirds vote of the total membership is necessary.
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.