IN RE: ROCHESTER CITY SCHOOL DISTRICT (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum:  Respondent-defendant Council of the City of Rochester (City Council) adopted Local Law No. 4 of 2019 (Local Law) to amend the City Charter with regard to the Commissioners of Schools (Commissioners), who constitute petitioner-plaintiff Board of Education of the Rochester City School District (Board).  Section 1 of the Local Law amended City Charter § 2–1 by removing the Commissioners from a list of “Elective officers”; section 2 removed the Commissioners' term of office from City Charter § 2–8; and section 3 deleted City Charter § 2–13, “Salaries of School Board members,” in its entirety.  Section 4 provided that the amendments shall remain in effect for not less than five years.  Section 5 scheduled a referendum for the November 2019 general election and provided that the Local Law would take effect only after both approval by the affirmative vote of a majority of qualified electors in that referendum “and the enactment of appropriate enabling amendments to the Education Law.”

In this hybrid CPLR article 78 proceeding and declaratory judgment action, petitioners-plaintiffs filed an amended petition-complaint seeking, inter alia, a declaration that the Local Law is invalid and that the referendum is void as advisory, as well as a permanent injunction barring the referendum from being placed on the ballot.  Supreme Court granted that relief, determining that the State unequivocally occupies the entire field of public education, thus preempting the Local Law and rendering the referendum impermissibly advisory.  Respondents-defendants City of Rochester (City), Lovely A. Warren, as Mayor of the City of Rochester (Mayor), and City Council (collectively, respondents) appeal.  We affirm.

Any local law that “[a]bolishes an elective office” or “reduces the salary of an elective officer during his [or her] term of office” is subject to mandatory referendum (Municipal Home Rule Law § 23[2][e] ), but an “advisory” referendum—i.e., one that lacks legal effect or consequence—is not permitted in the absence of express constitutional or statutory authority for it (Mills v. Sweeney, 219 N.Y. 213, 217, 114 N.E. 65 [1916]; see Matter of Brucia v. County of Suffolk, 90 A.D.2d 762, 762–763, 455 N.Y.S.2d 281 [2d Dept. 1982] ).

Contrary to respondents' contention, we conclude, for two independent reasons, that the referendum on the Local Law is impermissibly advisory and, thus, that the court properly declared the Local Law invalid and the referendum void.  First, the language of section 5 of the Local Law, which conditions its effectiveness on subsequent action by the New York State Legislature, strips the referendum of any binding legal effect (see Matter of Astwood v. Cohen, 291 N.Y. 484, 489–491, 53 N.E.2d 358 [1944], rearg. denied 292 N.Y. 621, 55 N.E.2d 380 [1944]; Matter of Silberman v. Katz, 54 Misc.2d 956, 959–963, 283 N.Y.S.2d 895 [Sup. Ct., N.Y. County 1967], affd 28 A.D.2d 992, 284 N.Y.S.2d 836 [1st Dept. 1967]; Meredith v. Monahan, 60 Misc.2d 1081, 1083, 304 N.Y.S.2d 638 [Sup. Ct., Rensselaer County 1969]; see also Municipal Home Rule Law § 23[1] ).  Second, as the court correctly noted, a local government may not legislate in areas “where the State has evidenced its intent to occupy the field” (Albany Area Bldrs. Assn. v. Town of Guilderland, 74 N.Y.2d 372, 377, 547 N.Y.S.2d 627, 546 N.E.2d 920 [1989] ), and it is well established that the State has preempted local action in the field of public education (see NY Const, art IX, § 3[a][1]; art XI, § 1; Education Law §§ 2552, 2553; Lanza v. Wagner, 11 N.Y.2d 317, 326–327, 229 N.Y.S.2d 380, 183 N.E.2d 670 [1962], appeal dismissed 371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163 [1962], cert denied 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164 [1962]; Matter of Divisich v. Marshall, 281 N.Y. 170, 173–174, 22 N.E.2d 327 [1939]; see also Board of Educ., Union Free School Dist. No. 4, Town of Greece v. Board of Educ. of City of Rochester, 23 A.D.2d 805, 805–806, 258 N.Y.S.2d 194 [4th Dept. 1965], lv denied 15 N.Y.2d 487, 260 N.Y.S.2d 1026, 208 N.E.2d 790 [1965] ).

Finally, we conclude that respondents' further contention that the court erred in its ruling concerning a letter sent to City residents by the Mayor is not properly before us.  No actual determination was made concerning the letter, notwithstanding the discussion of the matter in the court's decision, and respondents are therefore not aggrieved with respect to that issue (see Matter of Toles v. Radle, 172 A.D.3d 1945, 1946 [4th Dept 2019]; see also Matter of Sedita v. Sacha, 99 A.D.3d 1259, 1260, 951 N.Y.S.2d 459 [4th Dept 2012] ).