
    Lucien A. Morin, as County Manager and as Director of Finance of the County of Monroe, et al., Respondents, v Edwin A. Foster et al., Individually and as Monroe County Legislators, et al., Appellants. Allen J. Polvino, Individually and on Behalf of All Other People Similarly Situated, Respondent, v Edwin A. Foster et al., Individually and as Monroe County Legislators, et al., Appellants.
    Argued June 6, 1978;
    decided July 11, 1978
    
      POINTS OF COUNSEL
    
      Herman J. Walz for appellants.
    I. The Monroe County-Legislature has the authority to change the term of the county manager. II. Local Law No. 1 of 1978 is not subject to a referendum on petition. (Harrison Cent. School Dish v Nyquist, 59 AD2d 434; Downey v Lackawanna City School Dist., 51 AD2d 177; Edsall v Wheler, 29 AD2d 622; Murphy v Erie County, 34 AD2d 295; Smith v Helbraun, 21 AD2d 829, 24 AD2d 518; People ex rel. Gere v Whitlock, 92 NY 190; People ex rel. Mitchell v Sturges, 27 App Div 387, 156 NY 580; Matter of Fogarty v Warden, 191 Misc 916, 273 App Div 910, 297 NY 963.) III. Legislators should be able to appoint the county manager.
    
      John D. Doyle for Lucien A. Morin and another, respondents.
    I. Local Law No. 1 of 1978 curtails the power of the elective county officers of Monroe County with respect to the appointment and removal of a county manager. (Connelly v Commissioners of Almhouse of City of Kingston, 32 Misc 489; Vacheron v City of New York, 34 Misc 420; Matter of Carey v Smith, 247 App Div 473, 271 NY 611; Cort v Smith, 249 App Div 1, 273 NY 481; Matter of Fogarty v Warden, 191 Misc 916, 273 App Div 910, 297 NY 963; Matter of Heeran v Scully, 135 Misc 874, 229 App Div 822, 254 NY 344; Harrison School Dist. v Nyquist, 59 AD2d 434; Downey v Lackawanna City School Dist., 51 AD2d 177; Murphy v Erie County, 34 AD2d 295, 28 NY2d 80; Matter of Hansell v City of Long Beach, 61 AD2d 84.) II. Local Law No. 1 of 1978 changes the voting power of the elective county officers of Monroe County with respect to the appointment and removal of a county manager. III. The power to appoint a chief executive officer of a county for a four-year term has been embodied in State law since 1935 and such power constitutes an extraordinary grant of power.
    
      Nicholas R. Santoro for Allen J. Polvino, respondent.
    I. A curtailment of the power of elective Monroe County officers results from the enactment of Local Law No. 1 of 1978, which is thereby subject to a permissive referendum. (Matter of Fogarty v Warden, 191 Misc 916, 273 App Div 910, 297 NY 963; Matter of McCabe v Voorhis, 243 NY 401; Matter of 
      
      Heeran v Scully, 135 Misc 874, 229 App Div 822, 254 NY 344.) II. The change in the voting power of Monroe County legislators contained in Local Law No. 1 of 1978 requires a provision for a permissive referendum.
   OPINION OF THE COURT

Gabrielli, J.

The issue in this case is whether Local Law No. 1 of 1978 as passed by the Monroe County Legislature curtails any power of elective county officials thereby violating the provisions of the State Constitution and the Municipal Home Rule Law in that it fails to make provision for a permissive referendum.

Monroe County operates under a county manager form of government. The county charter, as enacted by the people, provides that the manager will be appointed for a four-year term and can be removed only for cause. In passing Local Law No. 1, however, the county legislature sought to amend the charter by striking the provision for a four-year term of office and by establishing instead, that the manager will serve at the pleasure of the county legislature. The law also deleted the charter provision which declared that the county manager could be removed from office only for cause, and further authorized removal by a majority vote of the county legislature "for any reason deemed by the County Legislature to be sufficient.” This law, as recently adopted by the county legislature, provided that it would take effect upon filing in the office of the New York Secretary of State without provision for a permissive referendum.

Plaintiffs Morin, as County Manager and Director of Finance of the County of Monroe, and Polvino, a taxpayer, brought these actions against the county legislature and the clerk of that body for a declaration that Local Law No. 1 is invalid and unconstitutional and seeking also an injunction to prevent the filing or enforcement of the law. A preliminary injunction was issued.

The State Constitution (art IX, § 1, subd [h], par [2]), the Municipal Home Rule Law (§ 34, subd 4) and the Monroe County charter (§ 1405; Local Laws, 1965, No. 2 of County of Monroe) declare that an amendment of the county charter which abolishes or curtails "any power of an elective county officer” must provide for a permissive referendum. The plaintiffs urge that Local Law No. 1 curtails the power of the county legislators by extinguishing their right to appoint a county manager to a four-year term of office and thereby bind subsequent legislatures. In support thereof, the plaintiffs say that ordinarily in matters involving governmental functions, a county legislature may not enter into a binding commitment which extends beyond the elected term of office of the legislature, in this case two years, because such a commitment would infringe upon the prerogatives of subsequent legislators to make a judgment in the same matter. Where, however, the charter specifically grants the authority, one legislature may be empowered to bind its successors. The plaintiffs argue that the charter, by providing a four-year term of office for the county manager, gave the county legislature and each individual legislator the unique power to bind a subsequent legislature, and Local Law No. 1 attempts to abolish or curtail that power without providing for a permissive referendum as constitutionally and statutorily required. Special Term sustained the plaintiffs’ contentions and declared Local Law No. 1 invalid. The court reasoned that although the law enhanced the power of the legislature in one respect by providing that the manager would serve at its pleasure, the converse of this broadened authority was to curtail that body’s and each legislator’s power to bind subsequent legislatures. The court concluded that by so curtailing a power of the county legislature without providing an opportunity for permissive referendum the law contravened section 34 of the Municipal Home Rule Law and was, therefore, invalid. The Appellate Division, by a divided court, affirmed.

The county legislators appeal urging that the law enhances rather than curtails their power by permitting removal at their pleasure and that since the legislature has the power to fix the term of office of any county employee, the exercise of that power cannot be deemed a curtailment of any related power. Finally, appellants contend that in any event, one legislature cannot bind subsequent legislatures by contracting beyond its term and thus the four-year term is void ab initio. For the various reasons discussed below, we reject these arguments and affirm the orders of the Appellate Division.

Commencing in the year 1936 the people of the County of Monroe adopted at a general election a county manager form of government based on the provisions of article 2-A of the County Law. From 1936 to 1967 the county operated under this form of government within the terms of the Optional County Government Law. That form of government was to be affected, as were others, by the adoption of article IX of the New York State Constitution in 1963 which declared a bill of rights for local governments authorizing the establishment of alternate forms of county government. Under the implementing legislation that followed (Municipal Home Rule Law, art 4; the County Charter Law) a county was empowered to adopt its own county charter as long as it was consistent with the flexible terms of that law. Among other provisions, the County Charter Law required approval by a majority of the voters of the county before a new charter form of government could become effective (Municipal Home Rule Law, § 33, subd 7).

In 1964 the Monroe County Board of Supervisors approved two separate, proposed county charters, each continuing the position of county manager as the chief executive officer of the county. Interestingly, each provided that the manager would serve at the pleasure of the legislature, but both proposals were defeated at the general election. Thereafter, and in contrast, the board of supervisors by Local Law No. 2 of 1965 adopted a county charter with the county manager serving a four-year term subject to removal only for cause. Pursuant to statutory mandate (Municipal Home Rule Law, § 33, subd 7), this charter was approved by the people, effective in 1967 and is presently controlling. Crucial to this charter and the form of government adopted by Monroe County was the distinction between the legislative branch and the executive branch. Although the county legislature appointed the manager, once appointed he stood distinct and separate from the legislature with a four-year term subject to removal only for cause. Thus, the manager held a secure position with a fair degree of independence. The relationship between the manager and the legislature, an intrinsic part of this form of government, was established by the orginial charter as approved by the people.

In 1978, however, the county legislature attempted to alter this relationship through the exercise of its power to amend the charter. Thus, the legislature enacted Local Law No. 1 of 1978 which abolished the manager’s four-year term of office and created the right to remove him at the pleasure of the legislature regardless of cause. Even if it could be considered that such a move was within the legislature’s power, this law would drastically alter Monroe County’s government without consideration by the voters whose approval was necessary for its creation.

The power of the county legislature to amend the charter is not unlimited. Our State Constitution provides that any amendment which abolishes or curtails "any power of an elective county officer” shall be subject to a permissive referendum (NY Const, art IX, § 1, subd [h], par [2]; see, also, Municipal Home Rule Law, § 34; Monroe County Charter, § 1405). A local law which curtails any power of an elected county legislature is inoperative unless subject to a permissive referendum (see Matter of McCabe v Voorhis, 243 NY 401). Thus the crucial question here is whether Local Law No. 1 curtails "any power” of an elective county officer.

Unless specifically provided by statute or charter provisions, one county legislature may not bind the hands of its successors in areas relating to governmental matters (see Murphy v Erie County, 34 AD2d 295, 298, affd 28 NY2d 80; Edsall v Wheler, 29 AD2d 622, 623; 10 McQuillin, Municipal Corporations, § 29.101; 40 NY Jur, Municipal Corporations, § 809). Elected officials must exercise legislative and governmental powers, within their own sound discretion, as the needs require. Ordinarily they may not so exercise their powers as to limit the same discretionary right of their successors to exercise that power and must transmit that power to their successors unimpaired (Edsall v Wheler, 29 AD2d 622, 623, supra). In the instant case the county legislators are elected for a two-year term and absent a statutory or charter provision (here present of course) they may not bind their successors in matters relating to governmental or legislative functions beyond that term. We need not define all the types of activity covered by the broad rubric "governmental activity” as applicable in the context of this rule, although there can be no doubt that business matters are not affected (10 McQuillin, Municipal Corporations, § 29.101), for in this case it is obvious that the appointment of a county manager is precisely and unmistakably a governmental matter within the rule’s purview and the Monroe County legislators would be limited by it but for the fact that the county charter specifically provides for appointment of the manager to a four-year term. By authorizing appointment to a four-year term the charter empowers the legislature to bind its successors and this power must be considered unique. The abolition of the manager’s four-year term in Local law No. 1 now before us serves to curtail this power. As such, the absence of a provision providing for permissive referendum renders the law constitutionally deficient and therefore void. Indeed, as a policy matter in view of the fact that the people of the county chose their form of government, it is certainly appropriate that they have an opportunity to speak on a major and substantive alteration of that form of government.

It is true, as appellants urge, that the county legislature has a general power to adopt local laws, not inconsistent with the Constitution, relating to the terms of office of its officers and employees (NY Const, art IX, § 2, subd [c]). In the present case, however, the county charter consistent with this provision established a set four-year term thereby permitting one legislature to bind its successor. Since the local law under attack by plaintiffs attempted to curtail this power it must be subject to permissive referendum as constitutionally mandated.

Appellants urge that we should view Local Law No. 1 as a whole and because it makes possible the removal of the manager at will, it generally enhances the power of the legislators. In essence the appellants ask us to balance the various facets of the law, weighing the provisions enhancing its power with those which curtail it, and in so doing they urge us to conclude that the amendment as a whole expands the legislature’s power. By looking generally to the "collective powers” of the county legislature as an institution, the dissenters would have us adopt this balancing approach. We may not, however, avail ourselves of such an analysis. The Constitution requires that a permissive referendum be held where the law curtails "any power” of an elective official (art IX, § 1, subd [h], par [2]). We are not free to balance the various aspects of a law but must only determine whether any power has been curtailed. Any claimed enhancement of some legislative powers does not negate the curtailment of others. We must reject, therefore, the appellants’ balancing approach and enforce the constitutional requirements. Judge Fuchsberg, in dissent, relies heavily on Matter of Fogarty v Warden (191 Misc 916, affd 273 App Div 910, affd 297 NY 963), a case in which the court held Newburgh Local law No. 1 of 1941 inoperative because it curtailed the power of elective city officers. Prior to 1941 the Newburgh City Charter provided for the appointment by the city council of a city manager "during the pleasure of the council”, but Newburgh Local Law No. 1 altered that power by requiring removal only after a public hearing. In Fogarty the court looked to the effect the local law had on the power that existed in the city charter. Likewise, in the present case we must look to the effect that the local law has on the power of appointment to determine whether there has been any curtailment. As demonstrated above, Local Law No. 1 of 1978 curtails the power of the elective officials of Monroe County to bind future legislators and is therefore invalid. The emphasis should not be placed on whether we believe one type of power of appointment is generally broader than another but whether an amendment to the existing power of appointment curtails any power inherent in the original appointment procedure. As in Fogarty, the court must determine whether the local law curtails any power and, in finding that it does, the law must be held invalid.

Because Local Law No. 1 curtails the power of the county legislature to bind its successor while failing to provide for a permissive referendum, it is unconstitutional and void.

Accordingly, the orders of the Appellate Division should be affirmed, with costs.

Cooke, J.

(concurring). I concur in the opinion of Judge Gabrielli for affirmance.

I would add that Local Law No. 1 of 1978, in dispute, both curtails and increases the power of county legislators in Monroe County, depending on where the wheel stops. If viewed from the position of the legislators at the time of appointment of a county manager, their power is curtailed or diminished insofar as the term to which the legislators may appoint is shortened. If measured at a point after an appointment has been made, power may be said to have been increased in the sense that an incumbent county manager would serve only at the pleasure of the legislature. Since there is a curtailing of power in a definite respect, regardless of whether in another aspect power may be increased, an opportunity for a permissive referendum is required (NY Const, art IX, § 1, subd [h], par [2]; Municipal Home Rule Law, § 34, subd 4; Monroe County Charter, § 1405).

Jasen, J.

(dissenting). The majority holds that Local Law No. 1 of 1978, enacted by the Monroe County Legislature, curtails the power of elective county officers, to wit: the county legislators themselves, by amending the county charter to provide that the county manager shall serve at the pleasure of the county legislature, rather than, as previously provided, for a fixed four-year term of office, from which the incumbent was removable only for cause. As a consequence of this conclusion, the majority affirms the orders of the Appellate Division holding Local Law No. 1 unconstitutional because of its failure to provide for a permissive referendum. (See NY Const, art IX, § 1, subd [h], par [2]; Municipal Home Rule Law, § 34, subd 4; Monroe County Charter, § 1405.) I disagree, and would reverse the orders of the Appellate Division upon the dissenting opinion of Justices Stewart F. Hancock, Jr., and M. Dolores Denman.

I would add only that, in my view, the majority distorts the intended purpose of the legislative directive it finds applicable today. Section 34 (subd 4) of the Municipal Home Rule Law was designed to insulate elective county officers from a county legislature’s attempt to curtail their powers without the contemporaneous approval of the people. It was not intended, however, to afford similar protection to appointed county officers. Yet the majority places such a gloss upon its terms by holding it applicable to a law which, as a practical matter, curtailed the power of the county manager, an appointed county officer, to the benefit of the county legislature.

To construe Local Law No. 1 as curtailing the power of the county legislature on the theory that any decrease in the power of the county manager effects a concomitant decrease in the power of the county legislature to bind a future legislature is, in my opinion, to place an unwarranted and overly technical construction upon the Municipal Home Rule Law (§ 34, subd 4). Carried to its logical conclusion, such a construction could be urged to require a permissive referendum on any local law amending a county charter for the purpose of removing power from the hands of an appointed county officer. For example, under the majority’s analysis, a local law designed to remove from a county manager, and vest in a county legislature, power over the preparation of the budget would be subject to a permissive referendum, for the simple reason that such legislation would curtail the enacting county legislature’s power to bind a future legislature to a term of office in which it had no control over the preparation of the budget. To so construe the Municipal Home Rule Law (§ 34, subd 4) would effect a transformation of its restriction upon the curtailment of the power of elective county officers to one upon the curtailment of the power of appointed county officers, a result never intended.

Accordingly, I would reverse the orders of the Appellate Division and declare Local Law No. 1 constitutional.

Fuchsberg, J.

(dissenting). Because I cannot agree that it curtails the powers of its county legislature, for the further reasons which follow I too would not find that Monroe County Local Law No. 1 of 1978 is inoperative in the absence of provision for a permissive referendum (NY Const, art IX, § 1, subd [h], par [2]; Municipal Home Rule Law, § 34, subd 4).

As I read Local Law No. 1, all it does is eliminate the prior four-year term of the county manager (an appointed officer whose powers and tenure are not protected by these particular constitutional and statutory provisions), and replace it with an indeterminate term, with the incumbent hereafter to be removable without cause by a majority vote of the whole legislature. As Justices Hancock and Denman pointed out in their dissent below, the powers of the legislature as a body are not diminished by this measure. If anything, they are considerably enhanced. Indeed, the only group of legislators whose decisions might be impaired by the new law are those who left office before it was adopted.

Plaintiffs’ argument that the power to fix the length of time an appointee will serve is separate and independent from, rather than an incident of, the power of appointment itself, finds support neither in logic nor in precedent. A mere variation in the procedure whereby an elective officeholder chooses or removes his appointees has not heretofore been held to trigger a permissive referendum (see Amico v Erie County Legislature, 36 AD2d 415, affd 30 NY2d 729) except, for instance, in such situations as when appointive powers were newly subjected to confirmation by another body (Matter of Doherty v Sanvidge, 58 Misc 2d 347) or, most appositely, when a previous right to remove without cause has been newly fettered (Matter of Fogarty v Warden, 191 Misc 916, affd 273 App Div 910, affd 297 NY 963).

The facts in Fogarty, which the majority correctly notes is a case on which I place heavy reliance, underline the point I make by indicating what the result would have to be if the situation were the converse of the one here. In Fogarty, the Newburgh City Charter stated that the city manager should hold office "during the pleasure of the council”. An attempt was made without referendum to alter this provision by adding a requirement that the manager could only be removed after the giving of notice and a public hearing. It was held that the amendment, which plainly imposed a severe limitation on the council’s discretion, was not operative because there had been no referendum. If a restriction on the power to remove without cause, as existed in Fogarty, was a curtailment, it can only follow that the adoption of such a provision in place of one inhibiting the local legislature’s removal power would be expansive.

The contention that the facets of the authority exercised by the legislature in appointing and removing a manager can be segregated into such water-tight categories as "appointment for a term of years” and "appointment subject to removal without cause” receives no sustenance from Fogarty. Semantic niceties cannot hide the reality that there is but a single power of appointment to be exercised and that the legislature’s range of freedom in doing so is not narrowed but broadened by Local Law No. 1.

The majority also attaches unwarranted significance to the supposedly "unique” character of the authorization of the local legislature to appoint an administrative officer for a fixed term to run beyond the terms of the appointing legislators themselves, parenthetically a power which it is not entirely clear could even be validly exercised (see Matter of Harrison Cent. School Dist. v Nyquist, 59 AD2d 434; Edsall v Wheler, 29 AD2d 622; cf. Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268, 275). In any event, since such a provision would operate only to the detriment of the successors in office of the individual legislators exercising it, it is inconceivable that the cited sections of the Constitution and Home Rule Law, which were intended to preserve the authority of incumbent elected officials, should be successfully invoked to bring about the effect they were meant to forestall.

Moreover, in stressing the need to guarantee the independence of the county manager from interference by the county legislature, a concept which draws on the doctrine of separation of powers so characteristic of our State and Federal governmental structures, the majority overlooks what is unique about the managerial form of local government. Far more analogous would be the relationship between the board of directors of a private corporation, in whom ultimate control resides and which, in that capacity, chooses corporate managers to implement its decisions. The whole idea behind the city or county manager form of government is to introduce modern and efficient business practices into municipal and regional government. By no means was it intended to weaken the power of the legislature, whose responsibility is directly to the people by whom it is elected. The manager, on the other hand, is responsible only to the legislature, by whom he is appointed. Notedly, he is not an elected official and he possesses no power of veto. Accordingly, no referendum and no managerial consent is needed to legislate a change in his term or power. (See, generally, Cort v Smith, 249 App Div 1, affd 273 NY 481; 2 McQuillin, Municipal Corporations, § 9.21.)

In contrast, the decision by a local legislature to make such a change, is not, in such circumstances as exist here, a diminution of its collective powers as an institution. Consequently, in acting to untie its hands in its supervision of its administrative subordinate, the Monroe County Legislature was acting in consonance with the purposes of the managerial form of government.

Accordingly, I would vote to declare Monroe County Local Law No. 1 of 1978 operative without referendum.

Chief Judge Breitel and Judges Jones and Wachtler concur with Judge Gabrielli; Judge Cooke concurs in a concurring opinion; Judges Jasen and Fuchsberg dissent and vote to reverse in separate dissenting opinions.

In each case: Order affirmed. 
      
       Section 34 (subd 4) of the Municipal Home Rule Law provides that local law must be subject to a permissive referendum when it "curtails * * * any power of any elective county officer”.
     