Opinion 90-31


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


PUBLIC MEETINGS AND HEARINGS -- Voting Procedures (authority to allow act by majority of quorum)
LOCAL LAWS -- Voting Requirements (authority to allow act by majority of quorum)

GENERAL MUNICIPAL LAW, §353-a; GENERAL CONSTRUCTION LAW, §41; MUNICIPAL HOME RULE LAW, §10(1): A committee formed by seven towns to operate a joint airport pursuant to General Municipal Law, §353-a must act by majority vote of the whole committee. The participating towns may not, by local law, authorize the committee to act by majority of the quorum present at a meeting.

You ask whether a committee formed to operate a joint airport pursuant to General Municipal Law, §353-a, consisting of the supervisors of the seven participating towns, must act by majority vote of the entire committee. If the committee must act by a majority vote of its entire membership, you also ask whether the towns may adopt local laws which would authorize the committee to act by a majority vote of the quorum present.

General Municipal Law, §353-a authorizes, inter alia, two or more towns in the same or adjoining counties, jointly, to acquire real property for, and to establish, construct, equip, maintain and operate an airport or landing field. The ordinance, local law or resolution providing for such action must establish a committee composed of a member from each town board. The committee is empowered to acquire necessary real property in the name of the towns jointly, and as their joint agent, to have charge of the construction, equipment, maintenance and operation of the airport or landing field, except to the extent that the town boards specify matters as to which action by the committee requires the joint approval of the town boards.

General Municipal Law, §353-a does not prescribe the number of votes needed for the committee to act. Section 41 of the General Construction Law, however, provides that whenever three or more public officers are given any power or authority, or are charged with any public duty to be performed jointly or as a board or similar body, any action requires the assent of the majority of the whole board. The provisions of section 41 are applicable to every statute unless its general object, language or other provisions of law indicate that a different meaning or application was intended (see General Construction Law, §110).

The committee in question consists of three or more members who are public officers (see Town Law, §20[1][a],[b]; Public Officers Law, §2; see also 1988 Opns St Comp No. 88-49, p 98) performing a public duty. Further, there is nothing in the General Municipal Law which suggests an intent that the provisions of section 41 do not apply to the committee. Therefore, we believe General Construction Law, §41 is applicable and that, unless the towns may provide otherwise by local law adopted pursuant to the Municipal Home Rule Law, the committee must conduct business and pass resolutions only by the affirmative vote of a majority of the whole committee.

A town may adopt local laws "relating to its property, affairs or government" (Municipal Home Rule Law, §10[1][i]) and, whether or not they relate thereto, with respect to certain specific subjects except to the extent that the Legislature has restricted the adoption of such local laws (Municipal Home Rule Law, §10[1][ii]). Included among the specifically enumerated subjects relating to which a town may adopt local laws is "[t]he transaction of its business". Even assuming, however, that defining the number of affirmative votes needed to conduct the business of a joint airport committee would constitute the "property, affairs or government" of the towns or would fall within the category of the transaction of town business, we note that, with certain exceptions not relevant here, a town may not adopt a local law which is inconsistent with any general law (Municipal Home Rule Law, §10[1]). Therefore, since General Construction Law, §41 is a general law (Municipal Home Rule Law, §2[5]; see also 1986 Opns St Comp No. 86-6, p 10), a town may not adopt a local law which is inconsistent with section 41. In our opinion, a local law which purports to authorize a majority of the committee present at a meeting to act in the stead of a majority of the whole membership would be inconsistent with section 41. Therefore, it is our opinion that the participating towns may not, by local law, authorize the committee to act by the vote of a majority of the quorum present.

August 20, 1990
James E. Maher, Esq., Town Attorney
Town of Harrietstown