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New York IS a Referendum State — In Local Government April 2017

New York IS a Referendum State — In Local Government

Gerald Benjamin, SUNY New Paltz

Assisted by Jaclyn Greco, Timothy Toomey, and Arjeta Prenaj




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After receiving a consultant’s report that the town’s highway garage was unsafe and near collapse, the governing board of the northeastern Onondaga County town of Cicero voted earlier this year to replace it. The estimated cost was $9,894,353. The decision had been avoided in the past, the need was great, leadership was willing, and the time seemed as ripe as it was likely to get. Town finances had been stabilized; Cicero is not among localities identified by the state comptroller as under “fiscal stress.” Interest rates are still low, especially for municipalities.

The plan was to borrow the money for the garage over 30 years. The average price for a house bought in Cicero in 2015 was $175,696. Without figuring in recent effects of changes in values, the annual tax impact of the project after the first year on this average priced house would come to $42 annually (about an initial 4 percent increase in a homeowner’s yearly town taxes). Things seemed all set.

But then a fly got into the ointment. New York law allows a referendum on proposed local bonding if a sufficient numbers of citizens want one: a petition properly prepared and signed by a number of “qualified electors” equal to 5 percent of those voting in the last gubernatorial election. In this case, that target number was 494. A drive led by former Supervisor Judy Boyke, defeated for election by incumbent Supervisor Mark Venesky, who was spearheading the garage replacement effort, delivered such a petition to the town clerk with more than enough signatures (635). The referendum must be held before the end of June.

According to the Council of State Governments, there are 21 states in which voters get to make law and/or propose constitutional changes by an initiative and referendum process. New York is not one of them. Nor may we New Yorkers petition to create a chance to vote “yea” or “nay” on what our legislature passes. Under our state constitution we do get to vote on proposed state borrowing backed by New York’s full faith and credit. (State leaders have found numerous ways to bypass this requirement. Only about 5 percent of New York’s current debt obligation was approved by the voters.) We also vote on state constitutional amendments proposed by the legislature. These are rarely consequential. More important but rare: we get to say if we wish to hold a state constitutional convention.

Interestingly, though New York is thus not seen as a “referendum state,” the word “referendum” appears 256 times in our laws. This is almost entirely with regard to local, not state, government. Most references have to do with questions of local government structure and finance. Referenda are mandated by the state constitution or laws for some key matters concerning local governance, and optional (“permissive”) for others.

Some examples of things for which there is a mandated local referendum: adoption of alternative forms of county government; local government restructuring, merger, creation, or elimination; and the abolition or redefinition of the powers of an elected office. Decreasing the compensation of a public official during a term of office also needs popular approval. So does shifting a governmental function from a village to a county as a result of county government restructuring and creating a service award program for volunteer firefighters. In this year’s budget process, the governor sought approval by referendum of a newly mandated local intergovernmental collaboration plan designed to increase efficiency, developed under the leadership of county chief elected officials. Resisted by localities, this new use of the local referendum did not survive the budget negotiations.

And then, of course, we have the most widespread use of required popular voting on policy in the state: the necessity for public approval of proposed budgets for almost all of our school districts.

Some of the subjects, like the proposed bonding in Syracuse, for which voters may petition for a referendum, include: dispensing with a public notice requirement in local law making; increasing the salary of a public official during his or her term; altering purchasing, contracting, assessment, auditing, or condemnation practices; and revising policy regarding publicly owned property.

Literally hundreds of local referenda annually in New York on questions of government finance of structure result from these local referendum requirements and opportunities. In aggregate, these provide a window into New Yorkers’ attitudes about how local government is paid for and organized.

For example, the failure rate upon first vote for local school budgets has long been regarded as an indicator of public mood about property taxation. As demonstrated in Figure 1, lately the number has been extraordinarily and consistently low (10 districts — 1.5 percent — in 2016). Many factors may help explain this, for example: levels of state school aid, retirement patterns of teachers and other school personnel, and declining school populations. Almost certainly, one significant factor is the 2 percent cap on property tax increases, enacted at the initiative of Governor Andrew Cuomo in 2011. Also shown in the figure, the high for the last quarter century was reached in 1994, when 200 (31.5%) of first offered school budgets were defeated.

Figure 1


Under current home rule law, counties have a great range of choice in adopting or altering their governmental processes and structures. City charters must be adopted in the first instance as state law. (No new city has been created in New York since Rye, in 1942.) Once established, however, cities have wide discretion in altering their charters or adopting new ones. Many of these matters must go to referendum. Town, village, and school district structures and processes are established in state law, with alternatives and ways to move toward them specified. Many of these actions also require, or might be the subject of, a referendum vote. Results of these votes are tabulated and filed at the county level. Their variety and complexity makes it hard to comprehensively find, aggregate, and assess the implications of the results of local referenda about popular attitudes towards alternative governance approaches.

But we wanted to take a look. To simplify the task, we decided to consider what we might learn from this year’s referenda on changing terms of office at the town level in the Benjamin Center’s home region, the Mid-Hudson valley.

New York state law provides that town council members be elected for four years in staggered elections and town supervisors for two, unless local voters say differently. A great majority (52 of 60) of towns in Ulster, Orange, and Dutchess counties have retained two year terms for their supervisors. According to state law, other town-wide elected officers — judges, town clerks, highway superintendents, and receivers of taxes — are generally elected for four years. In those remaining few places that still elect a single assessor, the term specified in law is six years.

Six Hudson Valley towns in three counties held eight votes this past November on whether or not to increase the terms of office for local elected officials. In Ulster County, town of New Paltz voters switched to electing their town supervisor every four years, not every two; in contrast, across the river in Dutchess County, Amenia voters chose to stay with a two year term for their town supervisor. Yet, on the same day, in Amenia the town clerk was given a four year term. Meanwhile, town of Poughkeepsie voters said “no” to this change for its clerk.

There was more agreement across jurisdictions when the question was asked about highway superintendent. In Gardiner, Saugerties, and New Paltz in Ulster County, and in Mount Hope in Orange County, voters agreed that those elected to this job should serve for four years, not two.

Intrigued by the apparent willingness of the region’s towns to go in opposite directions at the same time when it came to terms of office, we took a look at the towns in Ulster, Dutchess, and Orange counties to see whether these changes fit any general pattern.

We found that, including this year’s results, about half the towns in the three counties have transitioned to four year terms for their town clerks and highway superintendents, but very few for town supervisors. In fact, a majority (70%) of highway superintendents in Dutchess County now are elected for four years, as are nearly half (45%) in Ulster County. Interestingly, however, reflecting great reluctance to give a longer term to the town supervisor, only eight towns of 60 in the three counties have adopted four year terms for all town offices: Fishkill, LaGrange, New Paltz, Monroe, Red Hook, Wawarsing, Warwick, and Washington.

Varied terms of office reflect different points of view prevalent at different points in time across American history about how local government should be organized and work. Early on, short terms were preferred. Jacksonian Democracy elevated the role of the “common man,” and favored filling offices by election. No special qualifications were required. Later on, early 20th century Progressive reform favored longer terms in elective office and the use of appointment, not election, for all but policy making positions. Progressives sought efficient government run day to day by trained professionals.

Filling two of the key administrative jobs in town government by election — highway superintendent and clerk — is part of our Jacksonian-era heritage. Voters have come to like the idea that people who deliver key services are beholden to them at the polls. Moreover, highway spending makes up the lion’s share of local budgets in rural areas. Electing the department head keeps this big ticket item more firmly under the public eye. (Of course, this may have a negative side: inappropriate influence on priorities when roads get plowed or potholes filled.) Reflecting the influence of Progressive era thinking, we have seven examples in the region of these positons being changed from elected to appointed: the highway superintendents in Cornwall, Highlands, Newburgh, North East, Wallkill, and Warwick and the town clerk in Rhinebeck. (A 2011 survey done by the Government Options Study Committee in the town of Bethlehem in 2011 found that 43 New York towns (4.6%) had an appointed clerk, and 59 (6.3%) an appointed highway superintendent.)

Terms of office also reflect different ideas about representation. One view is that an elected official should act in accord with majority preferences. Short terms make sure that he or she stays in touch. An alternative view is that people are elected to exercise their best judgment, and then are accountable for results. Because achieving results takes time, this view justifies longer terms. These longer terms assure a degree of independence from day-to-day pressures for our elected officials. This may be why the individual elected assessor, where this office is still retained, is elected for six years. (We know, of course, that elected state judges have very long terms.)

In Saugerties, Highway Superintendent Doug Meyer, who has been in the job since 2012, said that his short term got in the way of effective collaboration with the village of Saugerties and neighboring towns and with implementation of ten year plans required by the state. Also, Meyer said, having the boss always at risk of losing his job created insecurity in the department’s workforce.

During the Gardiner town board’s discussion on whether to ask the voters for a four year term for the highway superintendent there, former supervisor and current Board Member Laura Walls argued that a longer term of office provided “… stability of leadership and staff … [t]hat’s very difficult … [to achieve] … on a two year cycle.” She continued, “… it’s the administrative component that you want to be more stable: budgeting, long-term planning, asset management.” She clearly has a Progressive era bent.

Walls’ board colleague, John Hinson, agreed regarding the highway superintendent job. But he said that he was chary of a town supervisor whom voters “can’t hold accountable after two years.” Inferentially, he was making a distinction between jobs in the town that are administrative and those that involve policy making. This distinction may be a part of the reason for Amenia’s split decision this past November: “yes” on the town clerk for four years, “no” for the town supervisor. Hinson’s reluctance is clearly reflected in the practice in town governments in our region; only eight of 60 town supervisors are elected for four years.

In the end, the choice of term lengths may come down to the community’s confidence in the person doing the job when the vote is taken. This appears to be the case for the town supervisor post in New Paltz. All four towns that gave their highway superintendents four year terms in 2016 were served by experienced, well-known incumbents. Perhaps this is the voters’ way of adding a dose of Progressive era thinking about specialized training into a Jacksonian era process without going all the way to appointment.

Change through the referendum process in how we design our local governments is slow and, it seems, discriminating and thoughtful. All in all, an encouraging story, in a time that we policy wonks can use all the encouragement we can get.


Figure 2


ABOUT THE ROCKEFELLER INSTITUTE OF GOVERNMENT

The Nelson A. Rockefeller Institute of Government, the public policy research arm of the State University of New York, conducts fiscal and programmatic research on American state and local governments. It works closely with federal, state, and local government agencies nationally and in New York, and draws on the State University’s rich intellectual resources and on networks of public policy academic experts throughout the country.