HomeMy WebLinkAboutHandbook for Boards and Commissions by City Attorney 1998 HANDBOOK FOR BOARDS AND COMMISSIONS
OFFICE OF THE CITY ATTORNEY
FOURTH FLOOR, CITY HALL
108 E. GREEN STREET
ITHACA, NY 14850
Distributed: December, 1998.
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HANDBOOK FOR BOARDS AND COMMISSIONS
TABLE OF CONTENTS
Executive Session . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Which issues qualify for an executive session? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
What may be done at an executive session?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Who must attend an executive session?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
Who may attend an executive session?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
What form of notice should be given for "closed" meetings?. . . . . . . . . . . . . . . . . . . . . . .5
Board Members' Liability in Administrative Decision Making. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Can board members be sued?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Can someone sue a board member personally seeking money damages for the
board member's decision?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Can a board member be held personally liable for money damages for a
decision a board member makes as a member of a City board? . . . . . . . . . . . . . .. 7
Open Meetings Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Minutes of public meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Conduct of Members of Boards and Commissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Adjudicatory decision-making . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
1. Planning Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2. The Board of Zoning Appeals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3. The Landmarks Preservation Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4. The Building Code Board of Appeals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
5. The Housing Board of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
6. The Board of Fire Appeals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
7. Board of Public Works. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
S. The Common Council. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Due process and property interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Conflicts of interest and bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Openness in the process and substantial evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Staff involvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Contacts with the public, the media and applicants . . . . . . . . . . . . . . . . . . . . .. . .. . . . . .15
What can a board member say? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
APPENDIX I: Legislative Actions and the Restriction on Binding Future Boards . . . . . . . . . . .17
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EXECUTIVE SESSION
An executive session of a meeting is that portion of the meeting which is closed to the public.
The purpose of an executive session is to discuss, confidentially, information which should not be
publicly disclosed. Unless a state statute or a federal statute specifically prohibits disclosure of certain
information, statements made during the executive session or information derived from the executive
session is not necessarily confidential. It is abundantly clear, however, that the confidential portions
of an executive session are to be treated as confidential.
The following clarifies the application of the Open Meetings Law rules regarding executive
sessions, and explains when an executive session is permitted and who may attend an executive
session.
Which issues qualify for an executive session?
With very few exceptions, a quorum of any of our Boards and Commissions is considered a
public body, which is subject to the state's Open Meetings Law. The Open Meetings Law allows a
public body to discuss a variety of issues at a closed, " executive" session. However, the public body
can only hold an executive session if its reason for doing so is one of the eight reasons listed in
§105(l) of the Public Officers Law.' These reasons are:
1. To consider subjects which could put the public in danger if they are discussed in a public
meeting;
2. To consider any issue which could reveal the identity of a law enforcement agent or
informer,
'See In re Previdi v. Hirsch, 524 N.Y.S.2d 643, 646 (Sup. 1988).
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Example: discussing an undercover investigation of criminal activity.
3. To consider information relating to current or future investigation or prosecution of a crime
which could threaten effective law enforcement if disclosed;
Example: discussing police officers'efforts to collect evidence showing that a house is being
used for the manufacture of illegal drugs, where public discussion of these efforts is likely to cause
the person manufacturing the drugs to move to another location.
4. To discuss court proceedings, including proposed or pending lawsuits;
Example: discussing whether to accept a settlement agreement proposed by a person suing
the public body.
5. To consider negotiations with a union;
6. To discuss the medical, financial, credit or employment history of a particular person or
corporation, or matters leading to the appointment, employment, promotion, demotion, discipline,
suspension, dismissal or removal of a particular person or corporation;
Example: discussing whether to suspend or recommend suspension of an employee.
7. To discuss the preparation, grading or giving of examinations; and
8. To discuss the proposed purchase, sale or lease of land and/or buildings, or the proposed
purchase of securities, or the sale or exchange of securities held by the public body, (but only when
publicity would substantially affect the value of the property.)
Example: discussing whether to purchase property, in cases where a property owner's
knowledge of the public body's desire to purchase the property would cause the property owner to
substantially raise the price of the property.
Courts will not give a broad interpretation to these reasons for going into executive session,
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because they believe the legislature wanted to significantly limit the use of executive sessions when
it passed this law.2 The public body is not permitted to state that it is holding an executive session
for one of the reasons stated in the Public Officers Law, then discuss other topics while in executive
session.' The motion to hold an executive session may not just re-state one or more of the reasons
provided in the Public Officers Law.' Instead, the motion must identify with some detail the subject
matter to be discussed in the session.' For example, in order to hold an executive session to discuss
a lawsuit (reason 94), the public body must identify the particular lawsuit that it will discuss.' In
contrast, though, in order to hold an executive session to discuss a personnel matter (reason# 6),
the public body need not and should not publicly identify the person that it will discuss.' However,
the public body must describe the nature of the personnel matter to be discussed.'
What may be done at an executive session?
The public body may discuss any of the topics listed in the Public Officers Law in an
executive session. However, the Public Officers Law does not allow a public body to appropriate
money, by formal vote, while in executive session.' Also, one court has decided that a public body
2See Daily Gazette Co Inc v Town Bd., Town of Cobleskill, 444 N.Y.S.2d 44, 46 (Sup.
1981).
'See In re Gordon v Village of Monticello. Inc., 620 N.Y.S.2d 573, 575 (3d Dep't 1994).
'See id. at 574.
'See id. at 575.
'See Dailv Gazette Co., Inc. at 46.
'See In re Gordon, at 575.
'See id.
'Public Officers Law§105(2).
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cannot create a full-time municipal position during executive session, because the public should be
allowed to voice its opinion regarding the creation of a new position in the local government before
such a position is created.10 Creating anew position can be distinguished from reason 96, which
allows discussion of appointing or hiring a person, because reason 96 applies to positions which
already exist. In other words, in executive session, a public body can discuss whether to hire a certain
candidate to fill a position. However, the public body may not discuss whether to create an entirely
new position during an executive session.
Who must attend an executive session?
There are no laws or court cases which require anyone to attend an executive session. The
Executive Director of the New York State Committee on Open Government, which provides
opinions and interpretations on the meaning of the Open Meetings Law, has confirmed that the law
does not require anyone to attend an executive session.
Who may attend an executive session?
Any member of the public body holding the executive session may attend the session. For
example, if a school board holds an executive session, any member of the school board can attend that
session. Also, the public body holding the session can give, under certain conditions, people
permission to attend the session. For instance, the State Comptroller has decided that a public body
holding an executive session can permit the Town Clerk to attend the session."
However, the public body is not free to permit just anyone to attend an executive session.
For example, one court decided that a school board could not permit the lawyer representing a person
"In re Gordon, at 575.
"Opinions of the State Comptroller 78-462.
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suing the school district to attend the board's executive session.12 Although there is no clear rule
listing types of people who are not permitted to attend an executive session, the court in the school
board case described above concluded that allowing the attorney who was suing the school board to
attend the session defeated the stated purpose of having the session, which was to discuss a pending
lawsuit privately, in order to avoid revealing the school district's legal theories to the person suing
the school district.13 Therefore, before a public body gives someone permission to attend an
executive session, it should consider whether that person's attendance at the session will defeat the
stated purpose of the session. If the person's attendance would defeat the stated purpose of the
session, then that person should not be permitted to attend the session. So, for example, if a
personnel matter is to be discussed, anyone who is not entitled to that type of confidential information
should not be invited to attend.
What form of notice should be given for "closed" meetings?
Closed meetings are in essence meetings of a public body, usually a committee meeting, at
which the entire subject to be discussed is the type specified in the Open Meetings Law (Public
Officers Law Section 95-106) as that which could be considered during executive session.
Section 100 of the Public Officers Law requires that a majority vote of the total membership
(of the public body) taken in an open meeting pursuant to a motion identifying the general area or
areas of the subject or subjects to be considered must be taken to have an executive session. Section
100 then goes on to list the subject areas permitted to be handled in executive session. Given this
procedure it is clear that an open meeting must be the vehicle by which an executive session may be
12 in re Previdi, at 646.
13Id.
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called. As such, Section 99 of the Public Officers Law requires that public notice must be given.
Section 103 of the Public Officers Law lists exemptions to the Open Meetings Law. Thus,
for example, disciplinary hearings, labor grievances, and deliberations of the BZA and other boards
with regard to quasi-judicial proceedings are not covered at all by the Open Meetings Law.
BOARD MEMBERS' LIABILITY IN ADMINISTRATIVE DECISION-NIAKING
Quite often the question is raised regarding the potential for board members' liability in cases
in which a board sits as an adjudicatory body and grants or denies some kind of application for a
permit or similar land use entitlements. Hereunder are some common questions which arise:
1. Can board members be sued?
Yes. If an applicant or an interested party is not pleased with the board's decision, the normal
method for dealing with that displeasure is for the person to file a particular kind of lawsuit
called an Article 78 proceeding against the City and/or the board. Sometimes the lawsuit
names the board, for example, "Planning Board for the City of Ithaca" and sometimes the
caption lists the individual board members starting, usually, with the chair. This type of
lawsuit simply challenges the board's determination and has no personal financial liability
implications for members of the board. Those who have been on a board for some time have
probably already been named as parties in Article 78 lawsuits.
2. Can someone sue a board member personally, for the board member's decision?
Yes. Anyone can bring a lawsuit or start a lawsuit against anyone...whether the lawsuit has
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any merit or not. The City of Ithaca has an obligation" to defend board members in lawsuits
brought against the board members in their personal capacity, when the board member is
sued because of something the member did while acting as a member of a City board. The
City also has a very substantial insurance policy covering its "public officers." Board
members are covered by this policy which specifically covers land use and zoning decisions.
This policy has a fairly high deductible, so claims against public officers, including board
members, are generally defended by the City Attorney's Office.
3. Can a board member be held personally liable for money damages for a decision he
or she makes as a member of a City board?
Yes. But only under very rare circumstances. A board member could be personally liable in
a lawsuit if the board member knew the state of the law on the particular question involved
and disregarded that knowledge in a way that deprived someone of a constitutionally
protected right. For example, let's suppose that during the site plan review process, an
applicant makes all of the changes requested by the board and a board member then said, "I
don't care whether the applicant has been willing to make all of the changes, I don't like the
project and I am going to vote to deny approval." A board member who took that approach
to the application process might be found to be personally liable, because, with knowledge
of the law, and no valid basis for denial, the board member denied the application on grounds
which were irrational.
14 Section 90 of the City of Ithaca Code
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When someone brings a lawsuit against a municipal board, the person who brings the lawsuit
has the option to sue either the municipality or the board members individually or both the
municipality and the board member. Even if a board member is listed as an individual defendant, the
City would represent the board member and indemnify(reimburse)the board member for any damage
award made against the board member, unless the board member's conduct in the decision making
process glaringly and intentionally deviated from the legal standards under which the relevant decision
was to be made.
Just to reiterate the basic theory, government officials, like Planning, BZA or ELPC board
members, performing discretionary functions, like deciding on site plan review or environmental
review questions, or use or area variances, or certificates of appropriateness, are immune from civil
liability so long as their conduct does not violate clearly established statutory or constitutional rights
which a reasonable person would have known. The standard for judging the conduct of the
government official (i.e. board member) is an"objective reasonable" standard measured by reference
to clearly established law. Even if the law is clearly established, and a government official, like a
board member, violated that law, the official may be entitled to immunity if she can establish that
because of extraordinary circumstances, she neither knew nor should have known of the unlawfulness
of her conduct.
OPEN MEETINGS LAW
Minutes of Public Meetin?s
All boards, commissions, task forces, and committees of the City of Ithaca and committees
of Common Council should be aware that the city law on Open Meetings and the state law on Open
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Meetings require that minutes must be taken.
The language of the law is as follows:
"Minutes shall be taken at all open meetings of a public body which shall consist of a record
or a summary of all motions, proposals, resolutions and other matter formally voted upon and
the vote thereon."
Minutes are also required to be taken at executive session on any action that is taken by
formal vote. Executive session votes are to consist of a record or summary of the final determination
on the action and the date and vote taken thereon. The summary does not need to include any matter
which is not required to be made public by the Freedom of Information Law.
Copies of these minutes should be filed with the Clerk's Office once they are prepared. State
law requires that the minutes are to be made available within two weeks from the date of the meeting.
CONDUCT OF MEMBERS OF BOARDS AND COMMISSIONS
This section offers some guidance for members of boards and commissions when the board
member is approached either by a member of the public, an applicant, or a member of another board
or commission regarding a question which is under discussion and will be voted on by the board
member who is approached. Although this might be thought of by some as a"conflict of interest"
question, the real question involves the Open Meetings Law and possible appearances of impropriety
which may occur because of these types of conversations.
In general, board members who will be voting on a particular issue should all be receiving the
same information in the appropriate forums, like the scheduled hearings before the board. When a
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board member is approached by an applicant, a member of the public or a member of another
interested board regarding any substantive matter that will be before the board, the board member
should tell the person who approaches them that the matter should be discussed at the public hearing
and that they do not wish to have any appearance that their decision is being influenced or might be
influenced by arguments presented to them outside the public hearing. If the question is simply one
of procedure, for example, a question about the time that a particular matter would be heard on the
agenda or a general question about how the proceedings are conducted, the board member should
feel free to answer that type of question.
The problems frequently come up for board members on the board of zoning appeals and the
planning board, because interested neighbors or applicants want to advocate to the individual board
member over the telephone or when they run into them in the street. One approach is to tell the
person that they think it is inappropriate for that kind of discussion to take place outside of the
hearing and outside of the presence of other interested parties, and to encourage them to attend the
meeting or make a written submission to the board.
It should be noted, however, that not all decisions which board members make are the same.
Members of the City's boards and commissions act in many different roles. They act as planners,
advisors, regulators, legislators, and judges. They act singly or in subcommittees or in full meetings
and what is considered appropriate for one type or role may be inappropriate when a board member
is in a different role.
ADJUDICATORY DECISION MAKING
The sections that follow address the role of a board member when the board member is
performing a "quasi-judicial" function, i.e., when the board member is called upon to vote on
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evidence presented to the board on some type of application. The boards which would generally sit
in this kind of role, from time to time, are:
1. The Planning Board, when it hears from an applicant for site plan review, subdivision
approval or when it conducts an environmental assessment."
2. The Board of Zoning Appeals, when it hears applications for variances, special
permits or interpretations and when it conducts related environmental review.
3. The Landmarks Preservation Commission,when it conducts a hearing on whether
a certificate of appropriateness should be issued, with any related environmental review, and when
it sits to make findings of fact and recommendations on whether a particular structure should be
designated for landmark status.
4. The Building Code Board of Appeals, when it conducts hearings for people who
disagree with the Building Commissioner's order to repair, remove or vacate a building.
5. The Housing Board of Review, when it sits to hear appeals for variances from orders
of the Building Commissioner's order to repair, remove or vacate a building.
6. The Board of Fire Appeals, when there is a challenge to a determination of the Chief
of the Fire Department covering fire prevention regulations not included in the State Uniform Code.
7. The Board of Public Works, when it hears appeals from billings, holds public
hearings on street openings and closings, establishes sidewalk assessments and the like.
8. The Common Council, when it hears appeals for denials of Commons Permits,
certificates of appropriateness and the like.
15 Environmental Assessment may come up for many boards,with the complexity of review dependent on the
potential for environmental impact.
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There may be other instances not listed above when boards or commissions are performing
quasi-judicial functions. The information which is presented in this section is intended to address
board members' concerns about proper procedure when the board member is sitting in this capacity.
It is not intended to cover any other of the various possible roles for the board member.
DUE PROCESS AND PROPERTY INTERESTS
What is at issue in each of the adjudicatory functions listed above is generally a determination
on some kind of property interest by an applicant for some type of permit. The general legal concept
involved for this kind of decision making is that individuals should not be deprived of some kind of
property interest without some form of due process. The process is usually a hearing on the
application for a permit, variance, or determination. General rules of due process are designed to
guarantee that a party in such a situation will have a full and fair opportunity to be heard and that
those in opposition to any application would likewise have a full and fair opportunity to be heard.
A board's decision on such a matter is supposed to be based on substantial evidence, in conformance
with the law and neither arbitrary nor capricious. Board members and courts which later review
boards' decisions should be in a position to know what evidence was reviewed and whether it is
substantial enough to justify whatever result the board reaches.
In addition to the substantial body of law which deals with these quasi-administrative or quasi-
judicial decision.-making processes, decisions of this kind are also governed by concepts taken from
the State's Open Meeting Law and from State and local ethics laws. The goal of all of these laws is
to insure to the largest extent possible that the adjudicatory decision making process is fair, open,
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i
impartial, and supported by evidence relevant to the legal standards involved for the particular
decision being made.
CONFLICTS OF INTEREST AND BIAS
A board member may and should decline to participate in a particular decision when the board
member or someone in the board member's family may be directly, and often financially, impacted
by the decision. A board member might also decide not to participate in a particular decision when
he/she feels so passionately about one view or another that he/she feels her ability to look at the
evidence and make a fair and unbiased decision is affected by feelings on the subject. Conflicts and
bias are grounds on which board decisions can be overturned.
OPENNESS IN THE PROCESS AND SUBSTANTIAL EVIDENCE
Board members who are provided with information of a substantive nature outside of the
public hearing process should make every effort to insure that the information they receive is placed
in front of the full board. For example, if a board member receives a letter at home, a copy of the
letter should be made a part of the file for the application so that everyone interested in the decision
can see it. If a board member is given a particular type of information in a verbal way outside the
hearing, the board member should disclose at the public hearing that they received information and
describe the kind of information received. All members of the board who are going to vote on a
particular subject should have available to them the same information. If there are two or more sides
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to an issue being voted upon, individuals who represent or support the applicant and those who
oppose any application should all be provided with the same information so that if there is a factual
dispute, sufficient information can be put forward to the board members for a proper resolution of
any factual dispute.
STAFF INVOLVEMENT
The first question which arises is whether and to what extent board members should be
obtaining information from City staff members. The guidelines which are appropriate for members
of the public are equally appropriate when considering information provided by or from City staff
members. All information should be made available to everyone on the board. For example, if a
board member decides that they need some particular guidance on a legal issue which appears likely
to be involved in an upcoming decision, a board member might contact the City Attorney's Office
with the request for information. Whatever answer is provided by the City Attorney's Office should
be provided to the entire board and made part of the record.
A more frequent example is the procedural guidance or information provided by the Building
Department for Board of Zoning Appeals members or the Planning Department for Planning Board
members. Generally, it is the staff of each of those departments who assemble the material as it
comes in for the application, determine the order on the calendar and the dates on which certain
events will take place. Staff members in the Building Department, for example, take responsibility
for circulating applications for zoning appeals to the Planning Board and to the County Board as is
required by law. Staff members in the Planning Department frequently serve as the distributors of
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information as it is provided by the applicant or members of the public or by other boards and
commissions. Such information is provided when Planning Board members, in reviewing portions
of an application, feel that additional information is required. As with the law office staff, the
Planning Department staff's function is to provide procedural assistance and to collect and distribute
data. All board members should have equal access to whatever information is provided and board
members should take a role in insuring that both the request for information and the information
resulting from the request is made available to the board.
CONTACTS WITH THE PUBLIC THE MEDIA AND APPLICANTS
Another question which comes up is the extent to which board members should feel free to
discuss what is going on with members of the public, applicants and/or the press. Since these
hearings are all open meetings, it is difficult to foresee a situation in which confidentiality of any kind
would be an issue. There would certainly be no problem with any member of a board or commission
describing the procedures which are involved in the board's decision-making process or their own
thinking on any question. A possible problem with a board member discussing his or her view of the
application in a public fashion prior to the reaching a decision, is that if what the board member says
indicates that the board member has prejudged the application before hearing all of the facts, such a
prejudgment might serve as a basis for a post-decision legal challenge by whatever party is unhappy
with the ultimate decision to the determination on the grounds of a bias or lack of impartiality.
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WHAT CAN A BOARD MEMBER SAY?
The aforestated guidelines are not intended to have the effect of a"gag" order preempting
board members from speaking to those with legitimate questions or concerns. It is suggested that
board members encourage people with concerns or information to come to the relevant hearings
or meetings and address the whole board. If a live appearance is out to the question, written
comments could be sent in.
If there are any other specific questions about the adjudicatory decision making process of
boards or any other questions that you feel would help you in your role as a board member, please
do not hesitate to contact the City Attorney's Office.
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APPENDIX A
G'JM munic!-cal bulletin May/June 1992 25
Report from
Counsel's Corner
x:
Legislative Actions sand the
Restriction on Binding
' Future Boards
by Barbara J. Samei
From time to time this issue ture legislature.3
posed on a municipality as
rears its ugly head - what is the The distinction between agent of the State." More recent-
length of time a village board of governmental and proprietary ly, courts have defined a
trustees or city council can matters is not always clear. In governmental function more
enter into a contract without Countv of Nassau v. South Far- liberally to include activities
violating the general principle min!zdale Water District , the which are not undertaken for
that a legislative body cannot court concluded that the distinc- profit-making purposes but,
bind future legislative bodies? tion between governmental and rather, as a public duty.5
This principle is often very dif- proprietary was an anachronism When exercising a proprietary
ficult to apply. In some instan- since it was created to alleviate or business power, the
ces a board cannot enter into a the hardships which sometimes municipality will be governed by
five year contract, vet has the resulted in tort cases from the the same rules which control a
authority to enter into a twenty application of the doctrine of private business. Contracts of
year contract under other cir- sovereign immunity, but the any length of time are permis-
cumstances. abolition of that doctrine "...vir- Bible as long as a municipality
The general common law rule tually destroyed the only real does not bind itself perpetually.
is that a municipal contract may basis for the creation of the dis- The length of the contract is up
cover any reasonable term, tinction..." The court still ap- to the legislative body, and will
provided it does not cede away plied the distinction and stated be considered prima facie valid.'
control or embarrass the legisla- that a governmental function A lengthy contract for a
tive or governmental powers of proprietary function does not
the municipality or render it un- surrender legislative power.
able in the future to control any The distinction between since it does not involve the exer-
matter over which it has juris- ouernmental and cise of legislative powers.
diction. The courts have con- Governmental functions have
strued this rule by holding that proprietary matters is been held to include: main-
contracts relating to governmen- not always clear. tenance of public schools and
tal as opposed to proprietary the provision of education$; the
matters may not bind the hands operation of a public library';
of successor governing boards, was one which "...was historical- supplying waterio; the construc-
unless expressly authorized by ly engaged In by local govern- don and operation of electrical
statute or charter.'- A statute or ment...is uniformly so furnished power plants 11; maintenance of
charter provision may authorize today...could not be performed street Lights 12; care of roads 13;
a municipality- to enter into a as well by a private corpora- the provision of ambulance ser-
contract for a specific term, and tion...is not undertaken for vice by contract with a private
such a contract could not be profit or revenue; and...is within firm l4 and consulting engineer-
considered void as binding a fu- the imperative public duties im- (conrfru. d on next page)
2 6 May\June 1992 muniei
-pal built t;n
(contint from previous page) provisions in the Taylor Law
ing services in the construction which seemed to indicate to the 1 Mc9uillin,Municipal Corporations,
of several future municipal Court that the State Legislature §29.100.
projectS15. intended contracts made under 2. Morin v Foster,45 N.Y.2d 287
It has also been held that if a its provisions to bind future (197s
municipal board exercises super- boards and not to be subject to 3. Murohv v Erie County,34 A.D.2d
visory control over a position of the annual appropriation 295 (1970).
employment, along with the process. 4. 62 A.D.2d 380(1978).
power of removal, then the Proprietary functions have in- 5. Koch_"Dyson. 85 A.D.2d 346(1982).
employment contract is a cluded: elevator maintenance 6. Sun Printing&Publishin¢Assn v
governmental function and the contracts;21 a tax exemption22 Mayor, etc. of New York, 152 N.Y.
contract cannot go beyond the authorized by statute where the 257(1897).
term of the board.18 This prin- village received consideration for 7. Lowe v New York,240 A.D.484
ciple was applied by the State the exemption; and contracts for (1934).
Comptroller in advising that the public utilities, such as water, 8. Nehrbas v Village of Lloyd Harbor, 2
employment contract of a village gas, and electricity.23 For fur- N.Y 2d 190.
manager could not go beyond ther guidance it may also prove 9. 1983 Op. St. Compt. 83-118
the term of the board.17 The beneficial to review cases which (Informal)'
employment contract of a attor- distinguish governmental and 10. County of Nassau, 62 A.D.2d 380;
ney was also held not binding proprietary functions under the Contra Footnote 23.
on future boards.18 doctrine of sovereign immunity. 11. Koch v Dyson. 85 A.D.2d 346(1982).
When a contract is made by a 12. Richmond Countv Gas Li ht co y
municipality which binds a fu- Iyiiddletown, 59 N.Y. 228(1874).
The Zength Of the con- ture board and is not warranted 13. Vacheron v City of New York, 34
tract iS Up to the legiSZa- by any statutory authority, then Misc. 420(1901).
tre
rive body, and will be
the contract will be valid only 14. 1982 Op. St. Compt. 82-182
y� for the correct permissible time (LSO=al)•
considered prima facie period and the legislative body 15. Edsall v. Wheler,29 A.D. 2d 622
valid- has at all times thereafter the (1967).
right to declare the contract void 16. Abrams y Horton. 18 A.D.208
and to refuse compliance or to (1897).
There are some other ratify the contraCt.24 Every per- 17. 1981 Op. St. Compt. 81-82
lecisions which are not entirely son who deals with a (informal).
harmonious with the general municipality is bound to know 18. Harison School v Nyguist, 59
rules. The employment of ar- the extent of its authority and A.D.2d 434(1977).
chitects to prepare plans and su- the limitations on its powers.25 19. Withers v. City of New York, 92 A.D.
pervise construction was In addition, when the contract is 147(1904).
considered a valid contract, within the general powers of the 20. Association of Surrogates and
even though the building would municipality but entered into for Su°ro ne Court RCDOrters Within the
not be completed until after the an excessive duration, the other Cott'°f New York v State 1) New
term of office of the board mem- party to the contract who has `fork. 78 N t..C 143 (1991).
bers.19 The Court refused to received its benefits cannot 21. Info Op. St Compt 74-650
apply the doctrine of binding fu- defeat its enforcement by the Mat rural).
ture boards because the employ- municipals b pleading the 22. Matter of City of New York v
p y- y p g Sanford. 13 A.D.2d 259 (1961).
ment was for a specific objective defense of ultra vires.2s
with a built-in termination date, The municipal attorney 23. n Op. St. Compt 60-950
the completion of the building. should be responsible for deter- (Infoo rmal).
24. Lindlots Realty Co olk
If the doctrine was applied to mining the correct term for rp.v suff
Counry, To, 278 N.Y. 45(1938);Town of
this type of employment con- municipal contracts to avoid Highlands v.Wevant, 38 A.D.2d 256
tract then municipal construc- entering into invalid contracts. (1972).
tion could never be fully In most instances, the decision 25. Svracuse Water Co v Svracuse, 116
completed. The Court of Appeals -will be a judgment call as a fine N•Y• 167 (1889); Connellvv
also recently held that all ele- line exists between a contract COmmissioners, 32 Misc. 489(1900).
ments of a public sector con- which violates the common law 26• City of New York v Delh Paoli. 2o2
tract become final when restriction on binding a future N-Y• 18 (1911).Mavor, etc., of New
approved by the public board and one which does not York v. Sonneborn, 113 N.Y.423
employer, even if subsequent ap- violate the restriction. ■ (1889).
propriations will be necessary in
order to meet the obligations
••nder a multi-year eontract.20
.le decision was based on