Opinion 93-2


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Change in Fiscal Year (timing of proposition in village)

VILLAGES -- Fiscal Year (timing of proposition to change)

ELECTION LAW, §15-104; VILLAGE LAW, §§9-908, 9-912: Village Law, §9-912 authorizes a village board, on its own motion, to hold a referendum on a proposition to change the month of the general village election at either a general or special village election for village officers. A village board, on its own motion, may not hold a referendum on such a proposition at any other time.

You ask under what circumstances a referendum on a proposition to change the date of the village general election from March to June may be held at a time other than at the general or special village election. You state that the proposition in question is being submitted to the voters on the village board's own motion.

Election Law, §15-104 provides, inter alia, that the general village election shall be held on the third Tuesday in March except in any village which adopts a proposition to elect its officers on another date (Election Law, §15-104[1][a]; but see, Election Law, §15-104[1][c], which prescribes a procedure for village elections in certain villages to be conducted by the board of elections on the day of the general election). Pursuant to Village Law, §9-912, as last amended by L 1977, ch 434, a village board of trustees may upon its own motion, and shall upon petition, cause a proposition on the question of whether to change the month of the general village election to be submitted "at a regular or special village election as such elections are defined in the election law" (Village Law, §9-912[1],[2][e]).

The term "regular village election" is not defined in the Election Law. The Election Law, however, does define "general village election" as the annual or biennial election for village officers (Election Law, §15-102[1]). It is evident from the legislative history that the term "regular village election" as used in section 9-912 is intended to refer to the "general village election" (see Memorandum to the Governor of the State Board of Elections re: L 1977, ch 434). The term "special village election" is defined in the Election Law as any election of village officers, other than the general village election (Election Law, §§15-102[2]; see also Election Law, §15-106).

Thus, Village Law, §9-912 authorizes a village board, on its own motion, to hold a referendum on a proposition to change the month of the general village election at either a general or special village election for village officers. It does not, however, authorize a village board, on its own motion, to hold a referendum on such a proposition at any other time. Accordingly, we conclude that such a referendum may not be held at a time other than at the general or special village election for village officers.

The legislative history of section 9-912 supports this conclusion. The legislative history indicates that, under certain circumstances, former subdivision four of section 9-912 authorized questions presented either by petition or by board motion to be submitted as a proposition at a time other than the village general or special election for officers. Former subdivision four, however, was repealed by a chapter 434 of the Laws of 1977. Chapter 434 further added language to Village Law, §9-912(1) providing that a petition may request that the referendum on a proposition be held at a time other than at a regular or special village election. It did not, however, reenact any authority for a proposition on a board motion to be submitted at a time other than at the regular or special village election.

There is nothing in the legislative history of chapter 434 which suggests that the elimination of the provisions relative to holding the referendum on board motion at a special election other than the special election of officers was unintentional. Indeed, the repealer note for chapter 434 states that former subdivision four was to be superseded by the new provisions (see McKinney's Sessions Laws of 1977, p 578).

In reaching this conclusion, we are mindful that Village Law, §9-908 provides that the board of trustees may upon its own motion cause to be submitted to referendum any "act or resolution of such board in connection with which a petition could be filed" pursuant to article 9 and that the proceedings thereunder "shall be the same as if such petition had been filed in accordance with the provisions of this article". Thus, if section 9-908 were applicable, it could be argued that the board's motion under section 9-912 would be treated as if it were a petition for purposes of holding a referendum at a time other than at the general or special village election.

In our view, however, section 9-908 is not applicable because it relates to acts or resolutions of the village board which are subject to permissive referendum but which the village board chooses to submit to voters on its motion. This statute does not pertain to the submission of propositions on questions. Section 9-912, unlike section 9-908, relates to questions submitted directly to the voters for approval or disapproval, not to resolutions already acted upon by the village board which are subsequently submitted for voter approval (Etelson v Jacaruso, 80 Misc 2d 685, 364 NYS2d 103 affd 47 AD2d 715, 366 NYS2d 389).

February 8, 1993
David M. Christy, Esq., Village Attorney
Village of Lewiston