I am responding to the Editor’s corner “Village vote can ice water debate” on April 17 by John D’Agostino. First I would point out that my experience is as a town attorney, not a village attorney, not a city attorney.

Second, other than referring to at hand materials, and brief search using Google Scholar, I have not updated nor researched this at any length. Third, this is a preliminary informal communication, and to no extent constitutes a legal opinion or advice or representation of any involved party, and certainly no final comprehensive discussion, and no final statement of law or fact is made, and none is to be implied. For information, I am providing a copy of this email to the village mayor.

My immediate reaction upon reading the article is that such a village referendum is illegal and unauthorized. This is well established, and well known, municipal law that has been settled and unchanged for 100 years. In New York, allowed referendums are exclusively those expressly provided for by statute, and are of two types, mandatory and permissive; none other.

Municipal officers are presumed to know the law. The article states that former Mayor Athanasia Landis “this week made a case for a village referendum” for the voters to decide the question, as stated in the article, “to buy water from an outside source and shut down its own plant and reservoir” or “repairing the current system.” I defer to you if you might inquire if former mayor Landis was aware of the legal prohibition prior to her making such a suggestion, and if not, why not. I defer to you if you might for example inquire of Sam Drayo as former village attorney if he concurs with my reading of the applicable law, and if there has been discussion of this among the “Save Our Reservoir” faction. I also defer to you if you might confer with your own legal counsel and consider publishing a clarification and retraction.

Finally, I note that the article states that “to go in this direction [that is, to submit the question to a referendum] is not without precedent for the municipality.” I do not know the source of such an assertion or who proposed such characterization. I suspect if it’s looked into, in 1980 there was no community petition for a referendum (a permissive referendum), because I suspect it would be found that the “bond resolution for a new Village Hall” was subject to a mandatory referendum. Thus the 1980 vote is no precedent at all for the current suggestion, and in fact is to the contrary, it is a precedent for when a referendum is mandated, one is held.

In closing, I offer the following references. From The Association of Towns of the State of New York Town Law Manual, using the less common form “referenda” for referendum, starting with a 1926 New York Court of Appeals decision, the highest New York court:

“Advisory referenda. It is a well-settled rule that advisory referenda are not permitted. (Matter of McCabe v. Voorhis, 243 NY 401; Mills v. Sweeney, 219 NY 213; Kupferman v. Katz, 19 AD2d 824 (1st Dept.); Silberman v. Katz, 54 Misc.2d 956 (Sup. Ct., NY Co.), affd 28 AD2d 992) Of these cases, McCabe is the leading authority. The New York Court of Appeals ruled that no referendum can be held by a local government in the absence of the constitutional or statutory authorization. “Government by representation is still the rule. Direct action by the people is the exception.” (McCabe at 413) Thus, in the absence of an express statutory provision, the holding of an advisory referendum by a municipality is not authorized. (Meredith v. Connally, 68 Misc.2d 956, 960 [Sup. Ct. Renss. Co., aff’d 38 AD2d 385 (3d Dept.)]; Silberman v. Katz, 54 Misc.2d 956 (Sup. Ct., NY Co.), aff’d without opinion, 28 AD2d 992 (1st Dept.); Matter of Town of Halfmoon, 81 Misc.2d 157 (Sup. Ct., Saratoga Co.)”

More recently, in 2017, the Appellate Division, Third Department, in Woodburn vs Village of Owego, 151 AD3d 1216, on this topic reiterated:

“[An] ‘advisory referendum’ is not authorized in the absence of express statutory authority (see Matter of Brucia v County of Suffolk, 90 AD2d 762, 762-763 [1982]; Matter of Kupferman v Katz, 19 AD2d at 824; see also Matter of McCabe v Voorhis, 243 NY 401, 413 [1926]; Matter of Greene v Town Bd. of Town of Warrensburg, 90 AD2d 916, 916-917 [1982], lv denied 58 NY2d 604 [1983]).”

Don Michalak is an attorney based in Fredonia.