New York Public Interest Research Group v. Giuliani

228 A.D.2d 276, 644 N.Y.2d 38, 644 N.Y.S.2d 38, 1996 N.Y. App. Div. LEXIS 6709

Opinion

The authority of elected officials to appoint is a "power” within the meaning of Municipal Home Rule Law § 23 (2) (f) and New York City Charter § 38 (5), and therefore any law that would abolish, transfer or curtail such must be approved by referendum (see, Morin v Foster, 45 NY2d 287, 295; Ferraro v Rettaliata, 165 AD2d 860, 861-862, lv denied 76 NY2d 713). The New York City Charter, adopted in 1989 by a referendum, mandates in sections 259 and 1152 that certain elected officials appoint a director of an Independent Budget Office by August I, 1990 and that the IBO be funded in a mandatory minimum amount. Local Laws, 1994, No. 30 of the City of New York delays the appointment and funding of the IBO. We agree with petitioner’s argument that the power to delay (without limit) is the power to destroy. In any event, since that postponement would curtail a power of elected officials, it is invalid in the absence of an approving referendum. Concur—Rosenberger, J. P., Wallach, Nardelli and Tom, JJ.