Opinion 88-70


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

REFERENDUM -- Advisory (fluoridation of water)

GENERAL CITY LAW, §20(2), (7); GENERAL MUNICIPAL LAW, §6-c(8): LOCAL FINANCE LAW, §34.00: In the absence of express statutory authority, a city may not conduct an advisory referendum on whether to fluoridate city water or whether to improve the city water or sewer systems. However, bond resolutions or expenditures from capital reserve funds in connection with the improvements may be subject to referendum in certain circumstances.

You ask whether a city may conduct a referendum to poll voters on issues such as whether to fluoridate city water or improve the city water or sewer system.

It has been consistently held in this State that a municipality may not submit a proposition to a referendum in the absence of express statutory authority (McCabe v Voorhis, 243 NY 401, 153 NE 849; Mills v Sweeney, 219 NY 213, 114 NE 65; Greene v Town Board of Town of Warrensburg, 90 AD2d 916, 456 NYS2d 873, mot for lv to app den 58 NY2d 604, 459 NYS2d 1027; Meredith v Connally, 68 Misc 2d 956, 328 NYS2d 719, affd 38 AD2d 385, 330 NYS2d 188; Adams v Cuevas, 133 Misc 2d 63, 506 NYS2d 614; Meredith v Monahan, 60 Misc 2d 1081, 304 NYS2d 638; Silberman v Katz, 54 Misc 2d 956, 283 NYS2d 895, affd 28 AD2d 992, 284 NYS2d 836). Based upon these cases, we have stated that referenda which are neither permitted nor required by statute are improper and without effect, and that municipal moneys may not be expended for such purposes (1987 Opns St Comp No. 87-80, p 120; 1986 Opns St Comp No. 86-8, p 14; 1981 Opns St Comp No. 81-344, p 376).

We are aware of no statute which authorizes or requires a city to conduct an advisory referendum on whether the city should undertake fluoridation of its water system, or water or sewer capital improvements (see 34 Opns St Comp, 1978, p 192; General City Law, §20[2], [7], [11]; cf. General City Law, §23[2][b], relative to referenda on sale or lease of city real property; Municipal Home Rule Law, §§23 and 24, requiring mandatory or permissive referenda, respectively, for certain local laws). However, there may be referendum requirements in connection with financing these improvements if the funding for the improvements is derived from the proceeds of borrowing or capital reserve funds.

Under Local Finance Law, §34.00, a city may adopt a local law requiring that, with two exceptions, all bond resolutions or those bond resolutions authorizing the issuance of bonds for such purposes or amounts as may be specified by local law shall be subject to mandatory or permissive referendum. A city may not require a referendum on bond resolutions authorizing the issuance of bonds to pay judgments or claims, or to provide sewage disposal or treatment facilities required by order of the State Departments of Health or Environmental Conservation (Local Finance Law, §34.00[b]).

Also, under General Municipal Law, §6-c(8), an expenditure from a capital reserve fund established for a type of, as opposed to a specific, capital improvement is subject to permissive referendum requirements if it is required by law that an authorization to issue obligations for such improvements would be subject to referendum. Thus, the expenditure of moneys from a capital reserve fund for a type of improvement would be subject to permissive referendum if, pursuant to city local law, the issuance of obligations for the improvement would be subject to referendum.

Accordingly, the city may not conduct referenda to poll voters on whether to fluoridate city water, or improve the city water or sewer system in the absence of State legislative authority. However, bond resolutions or expenditures from capital reserve funds in connection with the improvements may be subject to referendum in certain circumstances. We note that our reference to State legislation is not intended as a recommendation with regard to any such legislation.

May 25, 1988
Guido A. Loyola, Esq., Deputy Corporation Counsel
City of Schenectady