Informal Opinion No.

Arthur T. Connick, Esq. Village Attorney, Ardsley

You have asked whether a home rule request approved by a 3 — 2 vote of the village board of trustees, with the mayor voting against the request, was adopted under the provisions of section 40 of the Municipal Home Rule Law.

A "special law" relating to the property, affairs or government of a local government may not be enacted by the State Legislature without a home rule request by the affected local governments or, except in the case of the City of New York, on a certificate of necessity from the Governor (NY Const, Art IX, § 2[b][2]). A home rule request consists of a declaration that a bill is necessary and recites the facts establishing the necessity (Municipal Home Rule Law, § 40). In the case of a village, a home rule request is made by the mayor with "the concurrence of the legislative body of such local government" or by the approval of the "legislative body by a vote of two-thirds of its total voting power" (ibid.).

The mayor is a member of the board of trustees and your board consists of a total of five members. Under the provisions of section 40, a home rule request made by the mayor must also be approved by the legislative body. Under the general rule, approval is achieved through the votes of a majority of the total membership of the board (General Construction Law, § 41). While the mayor would be acting in two capacities, as a chief executive officer and as a member of the governing body, this is what section 40 clearly envisions. We note that the supervisor of a town and the chairman of the board of supervisors of a county, both members of the legislative body, are also listed in section 40 as officers who can make a home rule request with the concurrence of the legislative body. If the mayor does not make a home rule request, however, under section 40 a home rule request can be adopted only by a two-thirds vote of the total voting power of the local governing body. Thus, in the case of a five member village board of trustees, a home rule request must be approved by four members of the board.

We conclude that if the mayor does not make a home rule request, a five member village board of trustees may adopt a home rule request only with the concurrence of four members of the board.