NYCL AGO 95-11.

Case DateFebruary 06, 1995
CourtNew York
New York Attorney General Opinions 1995. AGO 95-11. February 6, 1995Informal Opinion No. 95-11Michael A. West, Esq. County Attorney County of Schoharie R. D. # 1 106M Cobleskill, NY 12043NY CONSTITUTION, ART IX § 2(h); NY CONSTITUTION, ART III § 26 (1935); ALTERNATIVE COUNTY GOVERNMENT LAW § 656(2); MUNICIPAL HOME RULE LAW §§ 10, 10(1) (ii) (a) (1), 10(1) (ii) (b) (3) AND (4), 23(2) (f), 33 (1) AND (2); L 1952, CH 834; L 1937, CH 862.A county board of supervisors in a non-charter county may by local law establish the position of county administrator. Further, if the local law does not transfer, curtail or abolish the powers of an elective officer, it would not be subject to a mandatory referendum. In that the Municipal Home Rule Law, rather than the Alternative County Government Law, is the source of authority for the enactment, the latter would not require a referendum.Dear Mr. West: You have asked whether the board of supervisors of a non-charter county may by local law, without a referendum, establish the position of county administrator. You have indicated that the local law would delegate rather than transfer powers of the county board of supervisors to the administrator. You are concerned that the establishment of a county administrator falls within the provisions of the Alternative County Government Law and would, therefore, be subject to a referendum under section 656(2) of that law. The so-called Fearon Amendment to the State Constitution, adopted in 1935, was the first step toward the granting of home rule powers to county governments. NY Const Art III, § 26 (1935) (repealed in 1963). The State Legislature carried out this constitutional amendment by enacting Chapter 862 of the Laws of 1937, the Optional County Government Law. That law authorized counties to adopt one of four specified forms of government. The options provided various forms for county administration. The Optional County Government Law was, for the most part, repealed and superseded by the Alternative County Government Law, which became effective in 1954. Laws of 1952, ch 834. The Alternative County Government Law provided four alternative plans of county government. Like the Optional County Government Law, counties could make only limited variations, depending upon the plan which was adopted. The major difference between the Optional County...

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