Filed Date: 4/26/1976
Status: Precedential
Modified Date: 7/5/2016
HON. JAMES RILEY Corporation Counsel, Troy
We acknowledge receipt from Assistant Corporation Counsel Henry J. Nahal of a letter inquiring whether the city manager or the mayor of the City of Troy has the authority to appoint a charter revision commission under the provisions of Municipal Home Rule Law, §
The charter provides for appointment by the city council of a city manager, who is designated as the chief executive officer of the city. The term of the city manager is indifinite and may be terminated by the city council. The city manager is given broad executive powers which, in many cities, are performed by the mayor or other city officers. You bring to our attention the two cases of Klein v. Mayor of the City of Yonkers,
"The legislature, in its wisdom, has given the power of appointment with respect to city charter revision commissions to `the mayor of any city' without any further definition or qualification. This means exactly what it says — no more, no less — and the court must assume, in keeping with the authorities dealing with the strong presumption of constitutionality of statutes, that the legislature must have known that there are 15 cities in the State of New York which have city managers who in most instances are the chief executive and administrative officers thereof." (Emphasis contained in original.)
In an informal opinion of this office published in 1970 Op. Atty. Gen. 178, we concluded that only the mayor of a city and not the city manager may create a charter commission to draft a new or revised city charter.
In Andrews, which involved the City of Long Beach, the question also was whether a charter revision commission could be appointed by the city manager. The pertinent facts are set forth in the memorandum decision of the Appellate Division which stated, in part:
"* * * The present Long Beach City Charter, as noted, makes no provision for a `mayor', but does state, in pertinent part of subdivision 1 of section 20 thereof, as follows: `The city manager shall be the chief executive officer of the city. Though his official title shall be city manager and that [sic] mayor,he shall be the mayor of the city and shall have and exerciseall the powers conferred upon the mayor by this act or by thegeneral statutes of the state not inconsistent with this act' (italics supplied). (In our view, the mistaken word `that' in the above excerpt should be read as `not'.) For the purposes of subdivision 4 of section
In our opinion, there is no conflict between Klein andAndrews. Klein enunciated the rule that as between a city mayor and a city manager, the power of appointment lay with the mayor.Andrews held that in a city which has no such officer as mayor but has a city manager who, by the terms of the city charter, "shall have and exercise all the powers conferred upon the mayor by this act or by the general statutes of the state not inconsistent with this act", the city manager was, for the purposes of the Municipal Home Rule Law, the city mayor. The City of Troy does have a city mayor. The charter of the City of Troy is not comparable in this respect to the charter of the City of Long Beach which was the subject of the litigation in theAndrews case.
In our opinion, the mayor, and not the city manager, of the City of Troy, has the power to appoint a charter revision commission under the provisions of Municipal Home Rule Law, §