I contacted Bob Turner, chair of the Charter Commission. Mr. Turner has always been very responsive.
I asked him when legally they must complete their charter draft. He responded that it must be done sixty days prior to the public vote. In light of their plan to have the vote on May 30, they would need to complete their work by March 31.
I asked him what their target date is for completing the charter. He responded that they are aiming for mid February.
I asked him what their budget was for this year. He said they were projecting $46,000.00 for support for their deliberations. He broke it down as follows.
They are projecting $20,000.00 for legal work. This would include $10,000.00 for the on-going assistance of assistant city attorney Tony Izzo and $10,000.00 for Robert Batson, Government Lawyer in Residence at the Government Law Center of Albany, to serve as the commission’s drafting attorney. Batson has considerable experience in drafting charters, having assisted the following cities in charter review efforts: Albany, Amsterdam, Cohoes, Glen Cove, Oneonta and Troy, NY, a mix of city manager, strong mayor and hybrid forms of government. From 1978 to 1995 he served as liaison between New York State and the governments of various Indian nations, and represented the State in negotiations on many issues, including land claims and gaming compacts.
They are projecting $20,000.00 for outreach and education. I am assuming this will mean some sort of mailing to the voters.
They are projecting $6,000.00 for the stenographer who records their meetings.
In addition, they project the cost for the special election in May to be $36,700.00
The total cost then would be $82,700.00.
JK:As has been covered in previous posts, there has been some controversy over whether the City Council is required to provide funding for the May 30 referendum. Mr. Turner forwarded me a number of documents on this issue. Commissioner Franck, who has adamantly opposed spending $37,000.00 on the May 30 referendum appears to agree with Mr. Turner’s legal analysis. The one grey area has to do with what is considered a “reasonable” expenditure. Lawyers might argue that the cost of a special election is not reasonable because it could piggy back on the November election. What the merits are to this argument and whether any members of the city council want to invest the political capital in such a fight remains to be seen.
To: Mayor Joanne Yepsen
Comm. Michele Madigan
Comm. Skip Scirocco
Comm. Christian Mathiesen
Comm John Franck
Cc: Members of the Charter Review Commission
From: Anthony J. Izzo
Re: Charter Review Commision – Expenses – Municipal Home Rule Law
Date: January 11, 2017
At the last council meeting questions arose over the authority of a charter review commission to determine that a proposed new charter should be submitted to the voters at a special election rather than at a general election.
Wade Baltramo, general counsel to the New York Conference of Mayors, has been consulted and has cited a 1987 Attorney General’s Office informal opinion clearly establishing that, unless the certificate creating the charter review commission specifies a general election only (and no certificate I have seen for any charter commission in this city has ever been so specific), the charter commission determines whether the proposal is submitted at a general or special election. A copy of this opinion is attached.
I am unable to cite any specific authority as to whether the expenses of a special election must be a charge against the city under subsection 36 (6)(c) of the Municipal Home Rule Law. This subsection provides that “appropriate city officials” have power, upon the request of the commission, to “appropriate to such commission such sum or sums as may be necessary to defray its expenses”. If those city officials do not provide the requested sum or sums within 45 days, the mayor of the city may file a certificate authorizing the commission to incur such expenses, and at that point those expenses “shall be a charge against the city and…audited and paid by the appropriate officials of the city”. I can find no authority definitely establishing whether the expenses of a special election are deemed “necessary” within the meaning of subsection 36 (6)(c). However, I believe that, given the premise that a commission has authority to cause a special election, a court would give substantial weight to a request for special election expenses, especially if it could be shown that the proposed special election would cost about as much as any other special election, and that its scheduling was reasonable.
I again recommend discussion and cooperation between council members and members of the charter review commission in resolving issues such as these. Please let me know if I can be of assistance.
To understand the budget discussion, you also need to understand NY Home Rule law 36.
At present, the Charter Review Commission has asked the Mayor to submit a budget transfer request to pay for our general administrative expenses ($46,000) and the special election ($37,000). The Mayor has submitted a budget transfer request to the Finance Commissioner. It may or may not be voted on in a special session of the city council.
State law is very clear that the Charter Review commission has the authority to call a special election and that the City Council does not have the authority to vote a budget up or down. The specific language from NY Home Rule law 36 is:
(c) In addition to action under any other power to make appropriations for the support of a charter commission, the appropriate officials of the city shall have power, on request of the commission, to appropriate to such commission such sum or sums as shall be necessary to defray its expenses and, in the event the appropriating body or bodies do not take affirmative action to provide such sum or sums within forty-five days of the commission’s request, the mayor of the city shall have power to authorize, by certificate filed with the fiscal officer or officers of the city, the commission to incur liabilities and expenses as specified by him, but within the sum or sums so requested, which shall be a charge against the city and which shall be audited and paid by the appropriate officials of the city.
NY Municipal Home Rule Law 36 is very clear in trying to ensure that charter review commissions are independent from political interference. The legislature recognized that charter commissions might want to change forms of government in ways that threatened the political status quo and ensured that it was independent from those political processes.
NY Municipal Home Rule Law 36 established the procedures for how the city charter review process is governed. At its core is the principal that the commission should be independent from political interference, hence the commission’s authority to decide when the referendum is heard and ability to be reimbursed for special elections. The law and case law establish very clearly that the Charter Review Commission has the authority to call a special election (see Wade’s email and the advisory memo). NY Municipal Home Rule Law 36 states: Any election has to be run by the normal established election rules and ..
the city must award the commission such sum or sums as shall be necessary to defray its expenses
- The legal opinion from Wade Beltramo, general counsel for NYCOMM
- The NY Attorney General opinion that charter commissions have the right to call a general or special election
- a legal memo from Tony Izzo, assistant city attorney, about the law (memo council charter expenses)
- The Shamon case which establishes the precedent that charter commission can incur expenses and the City must pay them.
115 A.D.2d 326
Supreme Court, Appellate Division, Fourth Department, New York.
George J. SHAMON, Edward L. Lauckern, Donald J. Poole, Michael J. Cuddy, Individually and as members of the Auburn City Council, Respondents,
Paul W. LATTIMORE, Individually, and as Mayor of the City of Auburn, Virginia Govern, Individually and as Chairman of the Auburn Charter Commission, Auburn City Charter Commission, Leo G. McGee, City Comptroller, Frederick W. McDonald, Acting Chairman of the Auburn City Charter Commission, Respondents, and George W. Cregg, Sr., Appellant.
Nov. 15, 1985.
Petition was filed to annul acts of city charter commission and mayor in incurring and authorizing payment of the commission’s legal fees. The Supreme Court, Cayuga County, Provenzano, J., granted the petition, and defendants appealed. The Supreme Court, Appellate Division, held that charter commission and mayor properly incurred and authorized payment of the commission’s legal fees.
West Headnotes (3)
|A municipal body, in retaining counsel and incurring legal fees, acts ultra vires absent specific statutory authorization or appropriate resolution and appropriation by the governing body.
|City charter commission’s power to incur legal expenses [McKinney’s Municipal Home Rule Law § 36, subd. 6(a, b)] necessarily implies power to direct that those expenses be paid.
|City charter commission’s legal expenses were properly appropriated where mayor filed certificate of authorization with city comptroller 45 days after city council’s rejection of the commission’s appropriations request and where the commission subsequently reconfirmed the contract. McKinney’s Municipal Home Rule Law § 36, subd. 6(c).
**189 Before *327 DILLON, P.J. and DOERR, DENMAN and BOOMER, PINE, JJ.
  It was error for the court to grant the petition to annul the acts of the Charter Commission and the Mayor in incurring and authorizing the payment of the Commission’s legal fees. A municipal body in retaining counsel and incurring legal fees acts ultra vires absent specific statutory **190 authorization or appropriate resolution and appropriation by the governing body (Cahn v. Town of Huntington, 29 N.Y.2d 451, 454–455, 328 N.Y.S.2d 672, 278 N.E.2d 908; Seif v. City of Long Beach, 286 N.Y. 382, 385–386, 36 N.E.2d 630). Here, however, there was express statutory authorization for the Charter Commission to retain counsel and incur legal fees (cf. Port Jervis Water Works Co. v. Village of Port Jervis, 151 N.Y. 111, 116, 45 N.E. 388). Municipal Home Rule Law § 36(6)(a) provides that members of the Commission “shall be reimbursed for the actual and necessary expenses incurred by them in the performance of their duties.” Municipal Home Rule Law § 36(6)(b) provides that the “Commission shall appoint * * * consultants as it shall require and fix their compensation * * * ” The power to incur legal expenses necessarily implies the power to direct that those expenses be paid (see Glendon v. City of New York, 276 N.Y. 329, 332–335, 12 N.E.2d 428).
[T]he appropriate officials of the city shall have the power, on request of the commission, to appropriate to such commission such sum or sums as shall be necessary to defray its expenses and, in the event the appropriating body or bodies do not take affirmative action to provide such sum or sums within forty-five days of the commission’s request, the mayor of the city shall have power to authorize, by certificate filed with the fiscal officer or officers of the city, the commission to incur liabilities and expenses as specified by him, * * * which shall be a charge against the city and which shall be audited and paid by the appropriate officials of the city.
The record establishes that the Mayor appropriated the Commission’s legal expenses by filing a certificate of authorization with the City Comptroller 45 days after the City Council’s rejection of the Commission’s appropriations request. The Commission subsequently reconfirmed the contract. Thus, the Commission’s legal expenses were properly appropriated.
Judgment unanimously reversed on the law with costs, and petition dismissed.
115 A.D.2d 326, 496 N.Y.S.2d 189
|End of Document
|© 2017 Thomson Reuters. No claim to original U.S. Government Works.
From WADE Beltramo
- Per our conversation, the relevant provision regarding the scheduling of the election is Municipal Home Rule Law § 36(5)(b), which provides in relevant part:
(b) Such new charter or amendments shall be completed and filed in the office of the city clerk in time for submission to the electors not later than the second general election after the charter commission is created and organized. The local law or certificate establishing the commission or, in the absence of such provision therein, the charter commission shall provide for such publication or other publicity in respect to the provisions of the proposed charter or amendments as it may deem proper, and for submission thereof to the electors of the city at a general or special election held not earlier than sixty days after the filing thereof in the office of the city clerk and not later than the next general election which does not occur within the said sixty days, provided, however, that if such general election occurs within ninety days after the said filing, the proposed charter or amendments shall be submitted at such general election. [emphasis mine]
Attached is an opinion from the Office of the Attorney General which concludes
We conclude that the local law or certificate establishing a charter commission may determine whether a proposed charter or amendments to an existing charter are to be submitted at a general or special election. In the absence of such a determination, the charter commission may determine the election at which the proposals are submitted to the voters for approval. [emphasis mine]
Consequently, assuming the City of Saratoga Springs did not place any restriction on the charter commission when it was formed, pursuant to MHRL § 36, it is the charter commission which determines whether to put the charter amendment to a vote at a general or special election.
I hope that this is helpful. If you have any questions or would like to discuss this matter further, do not hesitate to drop me an email or give me a call.
New York Conference of Mayors
119 Washington Ave., 2nd Floor
Albany, N.Y. 12210