Kerner v. Town of Clifton Park
| Decision Date | 26 October 1998 |
| Citation | 680 N.Y.S.2d 913,178 Misc.2d 845 |
| Parties | , 1998 N.Y. Slip Op. 98,635 In the Matter of Todd M. KERNER, Petitioner, v. TOWN OF CLIFTON PARK et al., Respondents. |
| Court | New York Supreme Court |
Todd M. Kerner, petitioner pro se.
Paul Pelagalli, Town Attorney of Town of Clifton Park, for respondents.
The question is whether a local law of the Town of Clifton Park changing the term of office of one of its supervisors from two to four years should be declared invalid.
On September 2, 1998 the Town Board of the Town of Clifton Park enacted a local law subject to mandatory referendum which would change the term of office of three officials, namely the Supervisor who serves on both the Town and County level, the Town Clerk and the Town Superintendent of Highways from two years to four years. The local law was adopted following a public hearing held that same day. It provides that the term of office of the Town Clerk will increase to four years for the person elected to that office in November 1999 and the terms of office of the Supervisor and Superintendent of Highways will increase to four years for the persons elected to those offices in November 2001.
Petitioner instituted this proceeding under article 78 of the Civil Practice Law and Rules contending that the enactment of such local law by the Town is prohibited by the Constitution of the State of New York and the Municipal Home Rule Law. Petitioner seeks judgment annulling the resolution which the Town passed in adopting the local law, declaring the local law invalid and ordering the referendum removed from the election ballot to be held November 3, 1998.
The gravamen of petitioner's claim is that the New York State Constitution and the Municipal Home Rule Law prohibit a town from adopting a local law extending the term of office for any town office where such officer is also a member of the legislative body of the county. In this case, the Town Supervisor serves as a member of the Town Board of the Town of Clifton Park and the Board of Supervisors of the County of Saratoga.
The court has examined the record of the proceedings and the law. Essentially what the matter distills to is the following:
The Town of Clifton Park may change the term of office of its Town Clerk and/or its Superintendent of Highways under either the Municipal Home Rule Law or the Town Law.
The Town of Clifton Park may not change the term of office of its Supervisor, who serves as a county officer, under the Municipal Home Rule Law. The Town may only change the term of office of such Supervisor under the Town Law.
If the Town of Clifton Park wishes to change the term of office of its Town Clerk and/or its Superintendent of Highways under the procedure set forth in the Municipal Home Rule Law, it may do so by enacting a local law.
If the Town of Clifton Park wishes to increase the term of office of any Town official pursuant to the procedure set forth in the Town Law from two to four years, it must at least one hundred fifty days prior to any biennial town election adopt a resolution and submit such resolution to the qualified electors of the Town for their approval or disapproval at the next biennial town election.
Election Day, November 3, 1998 is not a biennial election. 1
The Town Board held public hearings on two proposed local laws, 61 days before November 3, 1998, a non-biennial election. One public hearing was held on September 2, 1998 at 7:00 P.M. concerning the proposed adoption of a local law increasing the term of the office of the Town Supervisor who serves on the town and county level. The second public hearing was held on September 2, 1998 at 7:15 P.M. concerning the proposed adoption of a local law increasing the terms of office of the Town Clerk and Town Superintendent of Highways.
The Town Board then immediately adopted one local law pertaining to all three public offices. This latter local law was never introduced at any earlier meeting of the Town Board and no public hearing was ever held on this local law.
Article 9, § 2(c)(ii)(1) of the New York Constitution and section 10(1)(ii)(a)(1) of the Municipal Home Rule Law contain almost identical provisions which state essentially that local governments, which include towns and cities, shall have the power to adopt local laws not inconsistent with the Constitution or any state law with respect to the "terms of office ... of its officers ... except that cities and towns shall not have such power with respect to members of the legislative body of the county in their capacities as county officers".
It is clear that the Town of Clifton Park is prohibited from enacting a local law extending the term of office of its Town Supervisor under the above-cited provisions of the Constitution and the Municipal Home Rule Law.
Nevertheless the Town did in fact proceed under those statutory provisions to accomplish that objective.
The Town in this proceeding states that since it had authority under Town Law § 24-a to pass a resolution commencing the process of extending the term of the supervisor that it simply enacted a local law instead of a resolution, 2 and then turned to the provisions of the Municipal Home Rule Law to carry out a process of mandatory referendum.
The Municipal Home Rule Law, as noted above, expressly prohibits the Town from extending the Town Supervisor's term of office under the provisions of that law. Moreover judicial precedent prohibits the procedure employed in this case. In Matter of DiPaola v. Meisser, 55 Misc.2d 115, 284 N.Y.S.2d 477, the City of Glen Cove approved a local law extending from two to four years the term of office of certain of its officials including the Mayor who also served as a member of the Board of Supervisors of Nassau County. The local law was adopted under § 10 of the Municipal Home Rule Law and was placed on the ballot at a general election for approval or disapproval by the voters. The validity of the local law was challenged in an article 78 proceeding brought by citizens and electors of the City. Supreme Court held the local law unconstitutional finding that it violated the Municipal Home Rule Law and the State Constitution and ordered the referendum removed from the election ballot. Supreme Court's decision was appealed. The decision was upheld by both the Appellate Division of the Second Judicial Department (28 A.D.2d 1090, 284 N.Y.S.2d 850) and the Court of Appeals (20 N.Y.2d 866, 285 N.Y.S.2d 96, 231 N.E.2d 786). The DiPaola case is controlling precedent notwithstanding the fact that it involved a city since the proscription against extending the term of a member of the county board of supervisors by passage of a local law contained in § 10 of...
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