Legal Complications In Changing Term Limits Without A Referendum

The proposed extension of New York City’s term limits (Int. No. 845-a) from two (8 years) to three terms (12 years) applies to five offices: mayor, public advocate, comptroller, borough president and City Council.  On the question of whether a referendum is legally required, not all of these offices are treated the same.  This potentially poses complex issues for City Council members in seeking to shed the eight-year limit as it applies to the Council. In 2003, an appellate court upheld a local law that clarified that a two-year term associated with City Council reapportionment would not count as a full term, for purposes of the City Charter’s two-term limit.  As a result, no person could be disqualified from election to the City Council for having served less than eight consecutive years.  That decision expressly rejected the contention that the Council amendment then at issue “changes the term of an elective officer,” which would have required a referendum under the Municipal Home Rule Law. Unlike the law in the 2003 case, however, Int. No. 845-a replaces a two-term with a three-term limit, such that City Council members who have served two full consecutive terms would continue to be eligible for re-election to the City Council.  This same change was contained in a local law passed by the City Council in 1996, which the Council put to a referendum, resulting in its defeat. What was the legal basis for the City Council to place this same term limits change on the ballot in 1996?  A review of the relevant legal provisions suggests the following: a local law that changes the “membership or composition of the legislative body” requires a referendum under the Municipal Home Rule Law.  The City Clerk and Corporation Counsel apparently concurred in the City Council’s decision to hold that 1996 referendum.  The Municipal Home Rule Law requirement for a referendum is no different today than it was in 1996. Passage of Int. No. 845-a would therefore put the Council into uncharted waters.  On its face, a case could be made that an amendment to the Charter’s eligibility requirements for election to City Council would constitute a change in the membership or composition of that legislative body.  Specifically, the bill is designed to give voters the choice of returning the most experienced members to the Council, thereby averting the currently compulsory eight-year turnover in Council membership and leadership.  The argument is perhaps bolstered by the role seniority has historically played in determining leadership in the Council, as in most legislative bodies. Under this theory, a court could find that a referendum would be mandatory for Int. No. 845-a, but only in so far as the term limits change pertains to the City Council.  The bill now includes a severability clause, potentially allowing a court to uphold the amendment as it applies to the offices of mayor, public advocate, comptroller and borough president, while invalidating the term limits extension for City Council. The irony is that in choosing to avoid a referendum, Council members would face a significant risk of remaining subject to the eight-year limit, while enabling the higher offices to achieve a twelve-year limit.