Opinion 89-31

ELECTIONS -- Recall Election (authority of city voters to petition)
REFERENDUM-- Recall Election (authority of city voters to petition)
CHARTERS -- City Charters (right to hold recall election)
LOCAL LAWS -- Recall Election (authority of city to provide for)

MUNICIPAL HOME RULE LAW, §§10(1)(ii)(a)(1), (c)(1), 37: A city may not provide for recall elections of elected officials in the absence of express statutory or constitutional authority.

You ask whether the voters of a city may bring a petition to remove an elected city official through recall election. Under such a procedure, a city official would be removed from office before the end of his or her term of office by vote at a referendum to be taken upon filing of a petition signed by a specified number of qualified persons.

Initially, we note that it is well-established in this State that government by representation is the rule. Direct action by the electorate is the exception and must rest on an express constitutional or statutory grant or reservation of power (Mills v Sweeney, 219 NY 213; McCabe v Voorhis, 243 NY 401). There is no constitutional provision or general State statute which provides authority for recall of elected city officials by petition and direct vote of the electorate (cf. Public Officers Law, §33 providing for the removal of the chief executive officer and police chief of a city by the Governor). Therefore, unless a city is authorized under its home rule powers to adopt a local law providing for recall elections, such a procedure may not be utilized to remove elected officials from office.

In this regard, we note that the Municipal Home Rule Law and the State Constitution provide broad authority for a city to adopt local laws, not inconsistent with any general law or the constitution, relating to the "mode of selection and removal" of its officers and employees (NY Const, art 9, §2[c]; Municipal Home Rule, §10[1][ii][a][1]). Thus, if a recall election is simply a mode of removal within the contemplation of Municipal Home Rule Law, §10 and article 9(2) of the Constitution, it may be authorized by local law.

The question of whether a city charter may be amended by local law to provide for recall election was examined in Sinawski v Cuevas, 1986, 133 Misc 2d 72, 506 NYS2d 396, affd 123 AD2d 548, 506 NYS2d 711. This case was an Article 78 proceeding to annul a determination by the city clerk invalidating an initiative petition, filed pursuant to Municipal Home Rule Law, §37, to amend a city charter to provide for recall elections. The court first noted that those states which recognize the right of theelectorate to remove an elected official by recall election have done so by means of a specific reservation of that right in their constitutions. The court then stated as follows:

... There is no specific reservation of that right in the New York Constitution or in any statute; nor is there any reference to a procedure for a recall election in the Election Law. There are however specific statutory procedures for the removal of local officials and employees ...

Certainly the effect on the official involved, i.e., the loss of the position, is the same regardless of the procedural vehicle employed. However to hold that the term removal includes the right of recall would require the court to imply the reservation to the electorate of a substantive right entailing a complex procedure from the silence of the Constitution and the relevant statutes. (133 Misc 2d at 76, 506 NYS2d at 398-9)

The court concluded that, without an express grant of authority in the Constitution or the Municipal Home Rule Law to permit removal from office by direct vote of the electorate, no such right exists and the proposed local law was not a proper subject for a local law amending the charter. The court also concluded that, even if the removal of elected officials by direct vote of the electorate could be authorized by local law, the proposed local law was fatally defective as a matter of law because drafting defects made it incapable of enforcement.

The Appellate Division affirmed the Supreme Court's judgment dismissing the petition to annul the clerk's determination to invalidate the petition filed pursuant to Municipal Home Rule Law, §37. The Appellate Division, however, while affirming on the grounds that the petition was fatally flawed, also stated that it need not rule on whether a recall election is statutorily or constitutionally authorized (see also MacFarlin v O'Leary, 245 App Div 164, 281 NYS 112 [1935], in which a city local law providing for recall elections of city councilmen was declared invalid on procedural grounds).

For the reasons discussed in the lower court decision in Sinawski, supra, it is our opinion that a recall election to remove an elected city official from office may not be held in the absence of express statutory or Constitutional authority. Further, since neither article 9 of the State Constitution nor Municipal Home Rule Law, §10 expressly provide home rule authority to provide for recall election, a city may not adopt a local law authorizing recall elections.

August 22, 1989
Alfred L. Goldberger, Esq., Corporation Counsel
City of Schenectady