author: Gabrielli, J. Chief Judge Breitel

text:
    Group House of Port Washington, Inc., Respondent, v Board of Zoning and Appeals of the Town of North Hempstead, Appellant. Richard Rafinski et al., Intervenors.
    Argued June 7, 1978;
    decided July 11, 1978

      POINTS OF COUNSEL

      Edward G. McCabe, Town Attorney (Joseph A. Guarino, Peter R. Mineo and Howard M. Sinnott II of counsel), for appellant. I.
    The court below erred in finding that the State pre-empted the town’s right to enact legislation regulating the location of group homes. (Robin v Incorporated Vil. of Hempstead, 30 NY2d 347; Wholesale Laundry Bd. of Trade v City of New York, 12 NY2d 998; Kindermann Fireproof Stor. Warehouse v City of New York, 39 AD2d 266; Matter of Unitarian Universalist Church v Shorten, 63 Misc 2d 978; Rankin v Shanker, 23 NY2d 111; City of White Plains v Ferraioli, 40 AD2d 1001; People v Renaissance Project, 36 NY2d 65.) II. The court below erred in holding that the town’s zoning ordinance was contrary to State policy. (Matter of Ibero-American Action League v Palma, 47 AD2d 998; Abbott House v Village of Tarrytown, 34 AD2d 821; Matter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston, 30 NY2d 238.) III. The court below erred in not reversing Special Term’s decision relating to structural violations in the building to be occupied by group home. (Panzer v McConnell, 6 AD2d 700; Syosset Holding Corp. v Schlimm, 4 AD2d 766.)

      Anthony G. Nowachek for interveners.
    I. The court below erred in finding that the State pre-empted the town’s right to enact legislation regulating the location of group homes. II. The court below erred in holding that the town’s zoning ordinance was contrary to State policy. III. The court below erred in not reversing Special Term’s decision relating to structural violations in the building to be occupied by group home. IV. The court below erred in not finding that the proposed use would be in violation of a constitutional ordinance and would constitute deprivation of property and violation of personal rights without due process and in denial of equal protection as provided and guaranteed in the Constitution of the United States and the Constitution of the State of New York. (Bacon v Walker, 204 US 311.)

      Ieonard Weintraub and Ileen V. Crowley for respondent.
    I. This appeal should be dismissed as moot and academic. II. The court below properly held that the State has pre-empted local zoning ordinances with respect to the establishment of a group home. (Wambat Realty Corp. v State of New York, 41 NY2d 490; Town of Brookhaven v Parr Co. of Suffolk, 76 Misc 2d 378, 47 AD2d 554; Floyd v New York State Urban Dev. Corp., 33 NY2d 1; Adler v Deegan, 251 NY 467; Abbott House v Village of Tarrytown, 34 AD2d 821; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347; Wholesale Laundry Bd. of Trade
      v City of New York, 17 AD2d 327, 12 NY2d 988; Kindermann Fireproof Stor. Warehouses v City of New York, 39 AD2d 266; Jewish Consumptives’ Relief Soc. v Town of Woodbury, 230 App Div 228.) III. There is no distinction in the Social Services Law between a group home established by a public welfare official and a private nonprofit agency. IV. A group home is a family for purposes of the zoning ordinances of appellant town without requiring permanency or transiency as a test. (Village of Belle Terre v Boraas, 416 US 1.) V. The Town of North Hempstead Zoning Code makes no provision for a "group house” in any use district. (Matter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston, 30 NY2d 238; Moore v Nowakowski, 44 AD2d 901; Matter of Ibero-American Action League v Palma, 47 AD2d 998; People v Renaissance Project, 36 NY2d 65.) VI. The alleged building code violations are not germane or relevant to the issue before this court. (Matter of Community Synagogue v Bates, 1 NY2d 445.)

      Louis J. Lefkowitz, Attorney-General (Samuel A. Hirshowitz and Robert J. Schack of counsel), for the Department of Social Services of the State of New York, amicus curiae.

    I. Group
    homes for children constitute families for the purpose of "single family” zoning ordinances such as the instant one, regardless of the average length of stay in the group homes of individual children. (City of White Plains v Ferraioli, 34 NY2d 300; Smith v Organization of Foster Families, 431 US 816; Village of Belle Terre v Boraas, 416 US 1; Moore v East Cleveland, 431 US 494.) II. The State has pre-empted the right of local government to make or apply local zoning laws inconsistent with its policy of deinstitutionalization through use of group homes for children. (New York State Assn. for Retarded Children v Carey, 393 F Supp 715, 409 F Supp 606, 438 F Supp 440; Nectow v City of Cambridge, 277 US 183; City of White Plains v Ferraioli, 40 AD2d 1001, 34 NY2d 300.) III. The use of otherwise valid zoning ordinances for the purpose of or with the effect of excluding potentially disturbing persons or categories of persons, whether or not proven actually to be disturbing, whether or not they come from the community itself, but based solely on their living arrangements, is an impermissible exercise of the local government’s police power. (Euclid v Ambler Realty Co., 272 US 365; O’Connor v Donaldson, 422 US 563.)
   OPINION OF THE COURT

Gabrielli, J.

The limited, rather narrow issue presented on this appeal is whether the Town of North Hempstead may so stringently apply the term "family” as used in its zoning ordinances as to exclude a small "group home” of the type described herein used for the foster care of children. We hold that it may not.

Petitioner is a not-for-profit corporation which has purchased a house in Port Washington, an unincorporated area of the town. The applicable zoning ordinance allows only one-family residences to exist in the section of Port Washington in which the house is located. The ordinance defines a family as "[o]ne (1) or more persons related by blood, marriage or legal adoption residing or cooking or warming food as a single housekeeping unit; with whom there may not be more than two (2) boarders, roomers or lodgers who must live together in a common household”. At the time this proceeding was commenced, petitioner had determined to use the house it purchased as a "group home” for the care of children as is authorized by section 374-c of the Social Services Law. Believing that certain structural modifications were necessary for its purposes, petitioner applied to the town building commissioner for a building permit. The commissioner denied the permit, declaring that a "group home” was not a permitted use in that area. The commissioner’s refusal to issue a permit was sustained by respondent board of zoning and appeals, and petitioner then commenced this article 78 proceeding seeking to annul the decision of the board.

Petitioner has proffered two alternative reasons why it is entitled to a building permit. First, petitioner argues that a "group home” is a family within the meaning of that term as it is used in the zoning ordinances of the town; alternatively, petitioner contends that the State has so pre-empted the area of child care that it would be a violation of public policy to allow a municipality to exclude a "group home” approved by the State. Supreme Court ruled in petitioner’s favor, concluding that in light of this court’s decision in City of White Plains v Ferraioli (34 NY2d 300), the "group home” which petitioner sought to create must be considered a family for zoning purposes. The Appellate Division disagreed with that conclusion, but nonetheless affirmed the judgment of Supreme Court on the ground that a municipality may not utilize its zoning powers so as to exclude a "group home” approved by the State. The order of the Appellate Division should be affirmed, but on the narrow ground that the "group home” as described by petitioner before the commissioner and the board cannot be distinguished from a "natural” family. We need not, and accordingly we do not reach the broader question whether the State has pre-empted this area to the extent that a municipality may not forbid the establishment of a "group home” authorized under State law.

Before discussing the merits of this appeal in detail, it is necessary to first deal with a preliminary procedural question. As noted above, this challenge was originally commenced as an article 78 proceeding seeking to compel the issuance of a building permit. At some undisclosed time after the petition was filed, however, petitioner decided that the proposed structural modifications were in fact unnecessary. Petitioner has apparently commenced operation of its "group home” and no longer requires a building permit. It has been suggested that this proceeding is now moot. Although this is true to the extent that the relief originally sought by petitioner is no longer needed, there nonetheless continues to exist a timely and justiciable controversy between these parties, since petitioner is operating what respondent considers to be an illegal nonconforming use. To dismiss this matter as moot would be unrealistic in the extreme, since the question then would simply have to be relitigated in another form. Rather than countenancing such an unnecessary waste of both parties’ time and money, as well as increasing the ever heavy calendars of the courts, we have determined to convert this article 78 proceeding into an action seeking declaratory relief (see CPLR 103, subd [c]).

While the power to zone is a broad one, it is not without limit. It may be exercised only in pursuit of some valid public purpose and cannot serve to justify arbitrary exclusionary efforts. It is now settled law that a community may appropriately limit the use of certain neighborhoods to single-family residences. As the Supreme Court of the United States has remarked in Village of Belle Terre v Boraas (416 US 1, 9): "A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs. This goal is a permissible one * * *. The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.”

Nonetheless, a community may not, under the guise of protecting such values, apply completely arbitrary restrictions. The "group home” in the present case, as described in the record before us, is the functional and factual equivalent of a natural family, and to exclude it from a residential area would be to serve no valid purpose. Thus, we refuse to interpret the town ordinance as forbidding the establishment of "group homes” of the type described in this opinion in an area zoned exclusively for one-family residences.

The "group home” which this record presents will consist essentially of two permanent surrogate parents and seven children. The surrogate parents are to live in the house with the children, and to create a stable home environment for them. There will also be available temporary replacements for the surrogate parents, who will, like most parents, occasionally need some time away from the children. The children themselves are to be drawn from the Port Washington area. Thus, they will already be residents of the community. They will continue to attend the local schools, and will place no extra or additional burden upon the community.

The "group home” is intended to serve as a home for a few children who, because of an unhappy home life, simply cannot thrive and grow if they remain with their natural families. This home is not to be a detention center for persons in need of supervision, nor is it to serve as a place of treatment for the mentally disturbed youngster, although it will of course provide psychiatric counseling. Rather, this "group home” is intended to function as a replacement family for the victim of an unhappy home who, if left to struggle unsuccessfully with his or her natural family, might well become tomorrow’s delinquent. The "group home” is to provide such children with a stable, family-like existence, to give them the support and nurture they need if they are to grow into mature individuals capable of dealing with the complexities of life.

Much ado has been made about petitioner’s frank statement that it does not wish to keep these children in the "group home” until they reach maturity. Instead, the "group home” is intended to care for the children and prepare them for an eventual hoped for return to their natural families, if either the children become capable of handling the problems that exist in their natural families or if the family situations from which they come should themselves improve. Thus, it is suggested that this "group home” is a boarding house for transients, more akin to a college fraternity house than to the type of foster care "group home” which we found to be a family in the White Plains case. This argument is specious, for it would wrench out of context and place undue emphasis upon certain language used in that case, while at the same time simply ignoring the basic principles and rationale expressed therein.

Any foster care program, whether it be petitioner’s "group home” for seven foster children or the somewhat larger "group home” challenged in White Plains, is in a very real way "temporary”, since foster care by its very nature is simply a method of caring for children until they can either be returned to their natural parents or until an adoptive home can be found for them. Thus, the argument that petitioner’s "group home” is not a family simply because petitioner hopes to eventually return the children to their natural families is unconvincing. If this rationale were accepted, it could as readily be applied to allow the exclusion of a family with more than two foster children under this town ordinance. Such a result would, of course, be absurd. The flaw in respondent’s position is that it would have us simply take the word "temporary”, give it some talismanic significance, and apply it to exclude any "group home” regardless of the underlying realities.

Petitioner’s very purpose is to create a stable, family type environment for children whose natural families unfortunately cannot provide such a home. As such, petitioner’s "group home” would in no way detract from the family and youth values which one-family zoning is intended to protect. In fact, petitioner’s "group home” might actually support and further those values even more effectively than certain natural families. If petitioner’s "group home” is to be a success, it would most appropriately be placed in just such a quiet, residential neighborhood, for that is the very type of atmosphere which it seeks to emulate.

The surrogate family which petitioner hopes to create is in fact a permanent family structure, and not a temporary residence for transients. Although some of the resident children will be replaced by others as time passes, the family unit itself will continue. Moreover, regardless of the pious intentions of petitioner to return each child to its natural family as soon as possible, the grim realities of life are such that any such return may often be delayed for a considerable time, and may in some cases never eventuate.

Finally, we would emphasize that our decision today is limited to homes such as that described in this opinion, which serve as the functional equivalent of a family, for the exclusion of such groups would in no way further any valid public purpose. Whether a particular "group home” comes within this description is essentially a factual question. Different factors would exist were petitioner to convert its group house, for example, from the type of operation described above into a home for delinquents or the mentally disturbed, and we express no opinion as to the proper result in such a case. Thus, we conclude only that the "group home” described in this opinion is a permitted use as a one-family dwelling under the town zoning ordinances. Should the nature of the house change with the passage of time, however, should it become less of a surrogate family and more of an institution, it might then become an unpermitted use. On this record, however, we must conclude that petitioner’s "group home” is indeed a family.

Accordingly, the order appealed from should be modified, with costs to petitioner, to the extent of converting this article 78 proceeding into an action seeking declaratory relief, and judgment should be entered in favor of petitioner declaring that the "group home” described in this opinion is a family for purposes of respondent’s zoning ordinance.

Chief Judge Breitel

(dissenting). The Appellate Division held, quite correctly in my view, that the proposed group home does not qualify as a "family”, even as that term was liberally expanded in City of White Plains v Ferraioli (34 NY2d 300). The Appellate Division also held, however, that by enacting legislation authorizing group .homes the State had pre-empted the right of local governments to make zoning laws precluding group homes. That holding is erroneous and involves reasoning avoided as a ratio decidendi in the White Plains case.

The arrangement of the Port Washington facility does not meet the liberal minimal test stated in the White Plains case, that is, it is not "a group headed by a householder caring for a reasonable number of children as one would be likely to find in a biologically unitary family” (at p 306). I therefore respectfully dissent and vote to reverse and dismiss the petition or, in the alternative, to convert the proceeding into an action and declare that the group home in this case is not a family for purposes of the town’s zoning ordinance.

The Port Washington facility was set up to house unadapted disturbed children, "far more disturbed than the average young person”, only until continuing psychiatric care enables the children to be reunited with their families. They are supervised by an alternating staff the members of which periodically return elsewhere. Extension of the definition of "family” to include the proposed group home misperceives the functional interpretation applied to "family” in the City of White Plains case and, as a result, undermines the salutary purpose of single-family zoned districts. Moreover, it distorts the definition of "family” in the ordinance, a distortion impermissible even under the guise of interpretation or construction.

It is of course no longer argued that only persons related by blood or formal adoption may constitute a family under the ordinance, if liberally interpreted as it should be. Thus, on this view, a family with foster children would not be barred from a single-family zoned district. It does not follow, however, that every group home authorized under section 374-c of the Social Services Law is a family for zoning purposes, the only category relevant. The household, to qualify under the ordinance, in every sense but a biological one must function as a stable, single-family unit, albeit occasionally changing in composition as even a private family might and does. (Semble, contra, Little Neck Community Assn. v Working Organization for Retarded Children, 52 AD2d 90, 94, mot for lv to app den 40 NY2d 803; Living Resources Corp. v Burns, 91 Misc 2d 919.)

Because the group home in the White Plains case was in "theory, size, appearance and structure” set up to resemble a traditional family unit, the character of the neighborhood would not be impaired. The home consisted of a resident married couple, their own resident two children, and ten foster children, seven of whom were siblings. There was no shifting about contemplated; "the intention [was] that they remain and develop ties in the community” (34 NY2d, at p 305).

In contrast, the proposed Port Washington home in key respects differs from a traditional family. Instead of one married couple, two alternating sets of persons, not specified as to sex or marital status, are to be employed as "houseparents”, one set for weekdays and the other set for weekends and holidays. Nor does it appear that the children could be effectively integrated into the community, assuming, dubiously, that that was intended. The goal of the home, and that of the psychiatric treatment given, is that the youngsters be returned to their own parents as soon as possible. While staying at the Group House, the children would even visit and be visited by their natural parents. As opposed to a "relatively permanent” household, the framework of the Group House allows for, if it does not promote, the housing of transients. Indeed, the more successful the enterprise the greater the movement in and out of the home.

To hold that the instant home falls within the definition of "family” overstrains the acceptable reach of statutory interpretation and even construction. Inclusion of the proposed home under the term "family”, notwithstanding the alternating "houseparents” and the high potential for transient children, would involve precisely the overreaching kind of statutory interpretation required to hold, as did the Appellate Division in this case, that the State legislation authorizing group homes has pre-empted their exclusion by local zoning ordinances.

Even more problematic are the implications. If the instant home qualifies as a single-family unit, what of the residence intended to house children for two or three months and no longer. As a practical matter, the children in such a home would not likely be attending community schools or using community recreation facilities, as in some cases which have already arisen (see People v Saint Agatha Home for Children, Town Ct, Town of Pound Ridge, Sept. 26, 1977, Eichelburg, J., revd App Term, May 9, 1978). So, too, if this proposed group home is allowed, logically 5 or 10 more should be permissible in the same area. While any number of homes designed to conform practically with a community zoned for single-family homes should not be objectionable, a like number of homes resembling the Port Washington facility could, perhaps irreversibly, undermine the stability and tranquil atmosphere to which the majority opinion refers in discussing the Belle Terre case (Village of Belle Terre v Boraas, 416 US 1).

None of this is to cast doubt on the valuable purposes of the proposed group home. The remedy, if there should be one, would be State legislation mandating acceptance of the facilities but including, undoubtedly, controls and restrictions to prevent the subversion of equally valuable single-family communities.

In sum, each group home involves, almost invariably, its own complex of facts (see, e.g., Little Neck Community Assn. v Working Organization for Retarded Children, 52 AD2d 90, supra; see, generally, What Constitutes A "Family” Within Meaning of Zoning Regulation or Restrictive Covenant, Ann., 71 ALR3d 693). A kind of line drawing, then, however difficult a process, is inevitable. Whether single-family unit treatment is appropriate in a particular case requires analysis and sensitivity to subtle distinctions. Ultimately, the question is whether in theory, size, appearance, and structure the home is set up to emulate a family. Neither the need for the kind of facility proposed nor the unquestioned motives of petitioners should obscure the transient character of the proposed Port Washington home and the ill effects it could have on the community, and especially so if multiplied in number. A house that is built like a home is not necessarily a home. A house with a shifting group of children in need of continuing psychiatric care, and with shifting sets of adults, potentially all unrelated to one another and regularly returning elsewhere, is not a home.

There is no doubt that in statutory interpretation and construction the courts may and do apply standards allowing the effectuation of the intent of the lawmaker. But there are finite limits, even if no sharp line, between interpretation which is permissible and that which is not. So, in the White Plains case (supra) the court looked to the purpose of the zoning ordinance and expanded its meaning, quite liberally, to accomplish the purpose, even though the interpretation went beyond the literal and even plain meaning of the zoning ordinance. It is quite another thing, by an evasive process, to stretch the liberal interpretation to still another and even more liberal application; and this could go on endlessly. Such a process is not sound judicially and does not accord with principles of judicial restraint. The worst of the matter is that the problem is easily soluble by legislative change if indeed there is a legislative purpose to expand the areas in which group homes may be established.

Accordingly, I vote to reverse the order of the Appellate Division and dismiss the petition.

Judges Jones, Wachtler and Cooke concur with Judge Gabrielli; Chief Judge Breitel dissents and votes to reverse in a separate opinion in which Judges Jasen and Fuchsberg concur.

Order modified, with costs to petitioner, in accordance with the opinion herein and, as so modified, affirmed.


source: Caselaw Access Project

author: Chief Judge Breitel.

license: Public Domain

text:
    In the Matter of William D. Harris, Appellant, v Mechanicville Central School District, Respondent.
    Argued June 6, 1978;
    decided July 11, 1978

      POINTS OF COUNSEL

      Ivor R. Moskowitz, Bernard F. Ashe and Richard E. Casagrande for appellant.
    I. The decision of the district’s board of education dismissing William D. Harris is not supported by substantial evidence in the record herein. (Matter of Soucy v Board of Educ., 41 AD2d 984; Matter of Pell v Board of Educ., 34 NY2d 222.) II. William D. Harris has been deprived of his First Amendment rights by the action of the district. (Epperson v Arkansas, 393 US 97; Keyishian v Board of Regents, 385 US 589; Tinker v Des Moines School Dist., 393 US 503; Wieman v Updegraff, 344 US 183; Russo v Central School Dist. No. 1 of Town of Rush, 469 F2d 623; Sweezy v New Hampshire, 354 US 234; Keefe v Geanakos, 418 F2d 359; Sterzing v Fort Bend Ind. School Dist., 376 F Supp 657; Parducci v Rutland, 316 F Supp 352.) III. The district’s actions in this case were arbitrary, capricious and denied Mr. Harris his Fourteenth Amendment right to due process of law. (Cleveland Bd. of Educ. v La Fleur, 414 US 632; Schware v Board of Bar Examiners, 353 US 232; Meyer v Nebraska, 262 US 390; Whitney v California, 274 US 357; Palko v Connecticut, 302 US 319; Board of Regents v Roth, 408 US 564; Perry Sindermann, 408 US 593; Chase v Fall Mountain Regional School Dist., 330 F Supp 388; Birnbaum v Trussell, 371 F2d 672.) IV. Even assuming, arguendo, that the two charges against William D. Harris were properly substantiated, the penalty exacted was out of all proportion to the actions alleged, and was thus shocking to the conscience of the court. (Matter of Pell v Board of Educ., 34 NY2d 222.)

      Thomas D. Nolan for respondent.
    I. There is substantial evidence in the entire record to support the findings and determinations of fact and the decisions of the board of education. II. The dismissal of appellant did not violate his First Amendment rights. (James v Board of Educ., 461 F2d 566; Epperson v Arkansas, 393 US 97; Russo v Central School Dist. No. 1 of Town of Rush, 469 F2d 623.) III. The dismissal of appellant was with due process of law. (Matter of Karin v Board of Educ., 65 Misc 2d 179; Matter of Tessier v Board of Educ., 24 AD2d 484, 19 NY2d 680, Matter of Halloran v Kirnan, 28 NY2d 689.) IV. The dismissal of appellant was reasonable and justifiable. (Pell v Board of Educ., 34 NY2d 222; Simard v Board of Educ., 473 F2d 988.) V. The decision of the board of education is not affected by the enactment of chapter 82 of the Laws of 1977. (Clayton v Clement, 33 NY2d 386.)
   OPINION OF THE COURT

Chief Judge Breitel.

Petitioner, a tenured teacher, in a CPLR article 78 proceeding, seeks to annul a determination of respondent school district dismissing him on two charges of insubordination (see Education Law, § 3020-a, subd 5). Special Term sustained the first charge, but annulled the second and remanded the matter to the board of education for fixing of a sanction short of dismissal. The Appellate Division modified by reinstating both the second charge and the dismissal, and petitioner appeals.

The preliminary issue is whether the board’s determination, apart from the sanction imposed, is supported by substantial evidence. Assuming it is so supported, also at issue is whether for violating a voluntary agreement not to teach a particular work of fiction and abruptly walking out of a meeting with the school principal, dismissal is a sanction so disproportionate to the offense as to "shock the court’s sense of fairness.”

The order of the Appellate Division should be modified by reversing so much of the order as reinstated the dismissal and otherwise be affirmed. There being substantial, albeit contested, evidence to support each finding of insubordination, to that extent the board’s determination is beyond review (Matter of Pell v Board of Educ., 34 NY2d 222, 230). The dismissal, however, even under the court’s limited review of administratively imposed sanctions, cannot stand. Petitioner’s conduct was isolated, did not involve grave moral turpitude, and worked no grave injury to the school district. The matter should be remitted to Special Term, therefore, with directions to remand to the school district for determination of an appropriate sanction, which may be as restrained as a letter of reprimand but in no event more than one year’s suspension without pay.

Petitioner, a teacher employed in the Mechanicville High School since 1966 and eventually tenured, had for several years taught J. D. Salinger’s "Catcher in the Rye” to his sophomore English class. It is not contradicted that the book had been taught for several years and had not been removed from the school’s curriculum. In the fall of 1973 complaints from parents caused the school superintendent to question the methods employed by petitioner in teaching the novel. Particular exception was taken to his use in the classroom of explicit street language appearing in the book. To resolve the problem, the superintendent and the school principal met with the teacher. According to school officials, and evidenced by a memorandum later circulated by the superintendent, once he was advised of the community reaction to his manner of teaching the novel, the teacher voluntarily agreed to drop the book and find an appropriate substitute. In the fall 1974 semester, however, without warning and despite the earlier understanding, the teacher resumed use of the book.

As a result, on November 25, 1974, the teacher was summoned to a conference in the principal’s office. The meeting ended unexpectedly, however, when, after five minutes, the teacher abruptly walked out. Although the principal pursued him and, in the presence of others, asked him to return, the teacher refused.

Two charges of insubordination were made. The first arose out of the aborted conference, and the second was grounded on violation of the voluntary agreement.

Probable cause having been found by the board of education on both charges, a three-member hearing panel was convened (see Education Law, § 3020-a). Following two days of hearings, the panel recommended that the first charge be dismissed and the second sustained, in each case by a two-to-one vote. The only panel member to recommend a particular sanction suggested that at most a letter of reprimand be included in the teacher’s file.

Despite the panel recommendations, which then were not binding on the board, the board unanimously found petitioner guilty of both charges and resolved that he be dismissed (see former Education Law, § 3020-a, L 1970, ch 717, § 16; compare L 1977, ch 82, in effect since April 15, 1977, under which the board is bound by panel recommendations). This proceeding followed.

With respect to the board’s findings of insubordination, extended discussion is unnecessary. Petitioner, it is true, denies having reached a definitive agreement with respect to teaching the Salinger novel. He also seeks to justify his conduct at the November, 1974 conference with the principal. That the evidence is conflicting, however, is irrelevant. What does matter is that there is substantial evidence in the record that petitioner had agreed to cease teaching the novel and that, without acceptable excuse, he terminated the conference with the principal (see Matter of Pell v Board of Educ., 34 NY2d 222, 230-231, supra). Hence, the board’s determination, apart from the sanction imposed, is beyond review.

Petitioner’s resort to constitutional limitations to avoid the consequences of the board’s findings is of no avail. Petitioner is not charged with teaching an unacceptable work of literature. Nor are his methods the subject of charges. It is not as though petitioner, concerned with academic freedom, firmly stood his ground against community pressure in defense of his classroom activities. Petitioner instead agreed not to teach the Salinger book, and, without notice, reneged on the understanding. Moreover, evidently when about to be called to task for disregarding his prior agreement, he walked out on his superior. The charges are thus simple ones, and attempts to elevate them to constitutional dimensions misperceive their true nature.

The sanction imposed presents another question. Judicial review of administratively imposed sanctions is limited: only when the sanction is, under the circumstances, so disproportionate to the offense as to "shock the conscience of the court” may it be revised (Matter of Pell v Board of Educ., 34 NY2d 222, 232-235, supra). But, that the standard against which such sanctions will be tested leaves the administrative body with great latitude does not mean that disciplinary measures can go unchecked by judicial review.

As it was said in the Pell case (supra, pp 234-235): "Of course, terminology like 'shocking to one’s sense of fairness’ reflects a purely subjective response to the situation presented and is hardly satisfactory. Yet its usage has persisted for many years and through many cases. Obviously, such language reflects difficulty in articulating an objective standard. * * * At this time, it may be ventured that a result is shocking to one’s sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved. Thus, for a single illustrative contrast, habitual lateness or carelessness, resulting in substantial monetary loss, by a lesser employee, will not be as seriously treated as an offense as morally grave as larceny, bribery, sabotage, and the like, although only small sums of money may be involved.”

To be sure, the teacher’s conduct was not a trivial matter. Crediting the administrators’ version, the teacher breached an agreement relied upon by school authorities to quiet parental complaints. Even if innocently motivated by a misguided perception of his responsibilities as a teacher, it was not for petitioner, albeit in an isolated incident, to arrogate the sole power of judgment.

In fairness, however, the teacher’s conduct in context involved neither cardinal moral delinquency nor predatory motive. There is no suggestion that his actions were part of a pattern, or that his conduct involved the "persistent unwillingness to accept the directives of his superiors” which merited dismissal in Matter of Short v Nassau County Civ. Serv. Comm. (45 NY2d 721, decided herewith). Nor did the charges indicate a lack of capacity in general as a teacher, or a grave injury to the school district. It is significant too that the only hearing panel member to recommend a sanction concluded that a letter of administrative reprimand should be the severest measure imposed.

Under the circumstances, dismissal of the tenured teacher is so disproportionate to the offense as to shock the court’s sense of fairness. An appropriate sanction may be as light as that recommended by the hearing panel member or, at most, as severe as one year’s suspension without pay. Since, however, in this case this court will not presume to determine the precise sanction to be imposed, remittal is appropriate (see Matter of Pell v Board of Educ., 34 NY2d 222, 233-234, supra). Particularly is this so because there is here presented a matter involving both internal discipline and an understandable concern for the reactions of parents in the school district, areas in which the board possesses special sensitivity (see Matter of Ahsaf v Nyquist, 37 NY2d 182, 184-185).

Accordingly, the order of the Appellate Division should be modified, without costs, to reverse so much of the order as reinstated the sanction imposed, and otherwise be affirmed, and the matter remitted to Special Term with directions to remand to the school district for determination of an appropriate sanction.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order modified, without costs, and the matter remitted to Special Term with directions to remand to the school district for determination of an appropriate sanction in accordance with the opinion herein and, as so modified, affirmed.


author: Gabrielli, J. Cooke, J. Jasen, J. Fuchsberg, J.

text:
    Lucien A. Morin, as County Manager and as Director of Finance of the County of Monroe, et al., Respondents, v Edwin A. Foster et al., Individually and as Monroe County Legislators, et al., Appellants. Allen J. Polvino, Individually and on Behalf of All Other People Similarly Situated, Respondent, v Edwin A. Foster et al., Individually and as Monroe County Legislators, et al., Appellants.
    Argued June 6, 1978;
    decided July 11, 1978

      POINTS OF COUNSEL

      Herman J. Walz for appellants.
    I. The Monroe County-Legislature has the authority to change the term of the county manager. II. Local Law No. 1 of 1978 is not subject to a referendum on petition. (Harrison Cent. School Dish v Nyquist, 59 AD2d 434; Downey v Lackawanna City School Dist., 51 AD2d 177; Edsall v Wheler, 29 AD2d 622; Murphy v Erie County, 34 AD2d 295; Smith v Helbraun, 21 AD2d 829, 24 AD2d 518; People ex rel. Gere v Whitlock, 92 NY 190; People ex rel. Mitchell v Sturges, 27 App Div 387, 156 NY 580; Matter of Fogarty v Warden, 191 Misc 916, 273 App Div 910, 297 NY 963.) III. Legislators should be able to appoint the county manager.

      John D. Doyle for Lucien A. Morin and another, respondents.
    I. Local Law No. 1 of 1978 curtails the power of the elective county officers of Monroe County with respect to the appointment and removal of a county manager. (Connelly v Commissioners of Almhouse of City of Kingston, 32 Misc 489; Vacheron v City of New York, 34 Misc 420; Matter of Carey v Smith, 247 App Div 473, 271 NY 611; Cort v Smith, 249 App Div 1, 273 NY 481; Matter of Fogarty v Warden, 191 Misc 916, 273 App Div 910, 297 NY 963; Matter of Heeran v Scully, 135 Misc 874, 229 App Div 822, 254 NY 344; Harrison School Dist. v Nyquist, 59 AD2d 434; Downey v Lackawanna City School Dist., 51 AD2d 177; Murphy v Erie County, 34 AD2d 295, 28 NY2d 80; Matter of Hansell v City of Long Beach, 61 AD2d 84.) II. Local Law No. 1 of 1978 changes the voting power of the elective county officers of Monroe County with respect to the appointment and removal of a county manager. III. The power to appoint a chief executive officer of a county for a four-year term has been embodied in State law since 1935 and such power constitutes an extraordinary grant of power.

      Nicholas R. Santoro for Allen J. Polvino, respondent.
    I. A curtailment of the power of elective Monroe County officers results from the enactment of Local Law No. 1 of 1978, which is thereby subject to a permissive referendum. (Matter of Fogarty v Warden, 191 Misc 916, 273 App Div 910, 297 NY 963; Matter of McCabe v Voorhis, 243 NY 401; Matter of

      Heeran v Scully, 135 Misc 874, 229 App Div 822, 254 NY 344.) II. The change in the voting power of Monroe County legislators contained in Local Law No. 1 of 1978 requires a provision for a permissive referendum.
   OPINION OF THE COURT

Gabrielli, J.

The issue in this case is whether Local Law No. 1 of 1978 as passed by the Monroe County Legislature curtails any power of elective county officials thereby violating the provisions of the State Constitution and the Municipal Home Rule Law in that it fails to make provision for a permissive referendum.

Monroe County operates under a county manager form of government. The county charter, as enacted by the people, provides that the manager will be appointed for a four-year term and can be removed only for cause. In passing Local Law No. 1, however, the county legislature sought to amend the charter by striking the provision for a four-year term of office and by establishing instead, that the manager will serve at the pleasure of the county legislature. The law also deleted the charter provision which declared that the county manager could be removed from office only for cause, and further authorized removal by a majority vote of the county legislature "for any reason deemed by the County Legislature to be sufficient.” This law, as recently adopted by the county legislature, provided that it would take effect upon filing in the office of the New York Secretary of State without provision for a permissive referendum.

Plaintiffs Morin, as County Manager and Director of Finance of the County of Monroe, and Polvino, a taxpayer, brought these actions against the county legislature and the clerk of that body for a declaration that Local Law No. 1 is invalid and unconstitutional and seeking also an injunction to prevent the filing or enforcement of the law. A preliminary injunction was issued.

The State Constitution (art IX, § 1, subd [h], par [2]), the Municipal Home Rule Law (§ 34, subd 4) and the Monroe County charter (§ 1405; Local Laws, 1965, No. 2 of County of Monroe) declare that an amendment of the county charter which abolishes or curtails "any power of an elective county officer” must provide for a permissive referendum. The plaintiffs urge that Local Law No. 1 curtails the power of the county legislators by extinguishing their right to appoint a county manager to a four-year term of office and thereby bind subsequent legislatures. In support thereof, the plaintiffs say that ordinarily in matters involving governmental functions, a county legislature may not enter into a binding commitment which extends beyond the elected term of office of the legislature, in this case two years, because such a commitment would infringe upon the prerogatives of subsequent legislators to make a judgment in the same matter. Where, however, the charter specifically grants the authority, one legislature may be empowered to bind its successors. The plaintiffs argue that the charter, by providing a four-year term of office for the county manager, gave the county legislature and each individual legislator the unique power to bind a subsequent legislature, and Local Law No. 1 attempts to abolish or curtail that power without providing for a permissive referendum as constitutionally and statutorily required. Special Term sustained the plaintiffs’ contentions and declared Local Law No. 1 invalid. The court reasoned that although the law enhanced the power of the legislature in one respect by providing that the manager would serve at its pleasure, the converse of this broadened authority was to curtail that body’s and each legislator’s power to bind subsequent legislatures. The court concluded that by so curtailing a power of the county legislature without providing an opportunity for permissive referendum the law contravened section 34 of the Municipal Home Rule Law and was, therefore, invalid. The Appellate Division, by a divided court, affirmed.

The county legislators appeal urging that the law enhances rather than curtails their power by permitting removal at their pleasure and that since the legislature has the power to fix the term of office of any county employee, the exercise of that power cannot be deemed a curtailment of any related power. Finally, appellants contend that in any event, one legislature cannot bind subsequent legislatures by contracting beyond its term and thus the four-year term is void ab initio. For the various reasons discussed below, we reject these arguments and affirm the orders of the Appellate Division.

Commencing in the year 1936 the people of the County of Monroe adopted at a general election a county manager form of government based on the provisions of article 2-A of the County Law. From 1936 to 1967 the county operated under this form of government within the terms of the Optional County Government Law. That form of government was to be affected, as were others, by the adoption of article IX of the New York State Constitution in 1963 which declared a bill of rights for local governments authorizing the establishment of alternate forms of county government. Under the implementing legislation that followed (Municipal Home Rule Law, art 4; the County Charter Law) a county was empowered to adopt its own county charter as long as it was consistent with the flexible terms of that law. Among other provisions, the County Charter Law required approval by a majority of the voters of the county before a new charter form of government could become effective (Municipal Home Rule Law, § 33, subd 7).

In 1964 the Monroe County Board of Supervisors approved two separate, proposed county charters, each continuing the position of county manager as the chief executive officer of the county. Interestingly, each provided that the manager would serve at the pleasure of the legislature, but both proposals were defeated at the general election. Thereafter, and in contrast, the board of supervisors by Local Law No. 2 of 1965 adopted a county charter with the county manager serving a four-year term subject to removal only for cause. Pursuant to statutory mandate (Municipal Home Rule Law, § 33, subd 7), this charter was approved by the people, effective in 1967 and is presently controlling. Crucial to this charter and the form of government adopted by Monroe County was the distinction between the legislative branch and the executive branch. Although the county legislature appointed the manager, once appointed he stood distinct and separate from the legislature with a four-year term subject to removal only for cause. Thus, the manager held a secure position with a fair degree of independence. The relationship between the manager and the legislature, an intrinsic part of this form of government, was established by the orginial charter as approved by the people.

In 1978, however, the county legislature attempted to alter this relationship through the exercise of its power to amend the charter. Thus, the legislature enacted Local Law No. 1 of 1978 which abolished the manager’s four-year term of office and created the right to remove him at the pleasure of the legislature regardless of cause. Even if it could be considered that such a move was within the legislature’s power, this law would drastically alter Monroe County’s government without consideration by the voters whose approval was necessary for its creation.

The power of the county legislature to amend the charter is not unlimited. Our State Constitution provides that any amendment which abolishes or curtails "any power of an elective county officer” shall be subject to a permissive referendum (NY Const, art IX, § 1, subd [h], par [2]; see, also, Municipal Home Rule Law, § 34; Monroe County Charter, § 1405). A local law which curtails any power of an elected county legislature is inoperative unless subject to a permissive referendum (see Matter of McCabe v Voorhis, 243 NY 401). Thus the crucial question here is whether Local Law No. 1 curtails "any power” of an elective county officer.

Unless specifically provided by statute or charter provisions, one county legislature may not bind the hands of its successors in areas relating to governmental matters (see Murphy v Erie County, 34 AD2d 295, 298, affd 28 NY2d 80; Edsall v Wheler, 29 AD2d 622, 623; 10 McQuillin, Municipal Corporations, § 29.101; 40 NY Jur, Municipal Corporations, § 809). Elected officials must exercise legislative and governmental powers, within their own sound discretion, as the needs require. Ordinarily they may not so exercise their powers as to limit the same discretionary right of their successors to exercise that power and must transmit that power to their successors unimpaired (Edsall v Wheler, 29 AD2d 622, 623, supra). In the instant case the county legislators are elected for a two-year term and absent a statutory or charter provision (here present of course) they may not bind their successors in matters relating to governmental or legislative functions beyond that term. We need not define all the types of activity covered by the broad rubric "governmental activity” as applicable in the context of this rule, although there can be no doubt that business matters are not affected (10 McQuillin, Municipal Corporations, § 29.101), for in this case it is obvious that the appointment of a county manager is precisely and unmistakably a governmental matter within the rule’s purview and the Monroe County legislators would be limited by it but for the fact that the county charter specifically provides for appointment of the manager to a four-year term. By authorizing appointment to a four-year term the charter empowers the legislature to bind its successors and this power must be considered unique. The abolition of the manager’s four-year term in Local law No. 1 now before us serves to curtail this power. As such, the absence of a provision providing for permissive referendum renders the law constitutionally deficient and therefore void. Indeed, as a policy matter in view of the fact that the people of the county chose their form of government, it is certainly appropriate that they have an opportunity to speak on a major and substantive alteration of that form of government.

It is true, as appellants urge, that the county legislature has a general power to adopt local laws, not inconsistent with the Constitution, relating to the terms of office of its officers and employees (NY Const, art IX, § 2, subd [c]). In the present case, however, the county charter consistent with this provision established a set four-year term thereby permitting one legislature to bind its successor. Since the local law under attack by plaintiffs attempted to curtail this power it must be subject to permissive referendum as constitutionally mandated.

Appellants urge that we should view Local Law No. 1 as a whole and because it makes possible the removal of the manager at will, it generally enhances the power of the legislators. In essence the appellants ask us to balance the various facets of the law, weighing the provisions enhancing its power with those which curtail it, and in so doing they urge us to conclude that the amendment as a whole expands the legislature’s power. By looking generally to the "collective powers” of the county legislature as an institution, the dissenters would have us adopt this balancing approach. We may not, however, avail ourselves of such an analysis. The Constitution requires that a permissive referendum be held where the law curtails "any power” of an elective official (art IX, § 1, subd [h], par [2]). We are not free to balance the various aspects of a law but must only determine whether any power has been curtailed. Any claimed enhancement of some legislative powers does not negate the curtailment of others. We must reject, therefore, the appellants’ balancing approach and enforce the constitutional requirements. Judge Fuchsberg, in dissent, relies heavily on Matter of Fogarty v Warden (191 Misc 916, affd 273 App Div 910, affd 297 NY 963), a case in which the court held Newburgh Local law No. 1 of 1941 inoperative because it curtailed the power of elective city officers. Prior to 1941 the Newburgh City Charter provided for the appointment by the city council of a city manager "during the pleasure of the council”, but Newburgh Local Law No. 1 altered that power by requiring removal only after a public hearing. In Fogarty the court looked to the effect the local law had on the power that existed in the city charter. Likewise, in the present case we must look to the effect that the local law has on the power of appointment to determine whether there has been any curtailment. As demonstrated above, Local Law No. 1 of 1978 curtails the power of the elective officials of Monroe County to bind future legislators and is therefore invalid. The emphasis should not be placed on whether we believe one type of power of appointment is generally broader than another but whether an amendment to the existing power of appointment curtails any power inherent in the original appointment procedure. As in Fogarty, the court must determine whether the local law curtails any power and, in finding that it does, the law must be held invalid.

Because Local Law No. 1 curtails the power of the county legislature to bind its successor while failing to provide for a permissive referendum, it is unconstitutional and void.

Accordingly, the orders of the Appellate Division should be affirmed, with costs.

Cooke, J.

(concurring). I concur in the opinion of Judge Gabrielli for affirmance.

I would add that Local Law No. 1 of 1978, in dispute, both curtails and increases the power of county legislators in Monroe County, depending on where the wheel stops. If viewed from the position of the legislators at the time of appointment of a county manager, their power is curtailed or diminished insofar as the term to which the legislators may appoint is shortened. If measured at a point after an appointment has been made, power may be said to have been increased in the sense that an incumbent county manager would serve only at the pleasure of the legislature. Since there is a curtailing of power in a definite respect, regardless of whether in another aspect power may be increased, an opportunity for a permissive referendum is required (NY Const, art IX, § 1, subd [h], par [2]; Municipal Home Rule Law, § 34, subd 4; Monroe County Charter, § 1405).

Jasen, J.

(dissenting). The majority holds that Local Law No. 1 of 1978, enacted by the Monroe County Legislature, curtails the power of elective county officers, to wit: the county legislators themselves, by amending the county charter to provide that the county manager shall serve at the pleasure of the county legislature, rather than, as previously provided, for a fixed four-year term of office, from which the incumbent was removable only for cause. As a consequence of this conclusion, the majority affirms the orders of the Appellate Division holding Local Law No. 1 unconstitutional because of its failure to provide for a permissive referendum. (See NY Const, art IX, § 1, subd [h], par [2]; Municipal Home Rule Law, § 34, subd 4; Monroe County Charter, § 1405.) I disagree, and would reverse the orders of the Appellate Division upon the dissenting opinion of Justices Stewart F. Hancock, Jr., and M. Dolores Denman.

I would add only that, in my view, the majority distorts the intended purpose of the legislative directive it finds applicable today. Section 34 (subd 4) of the Municipal Home Rule Law was designed to insulate elective county officers from a county legislature’s attempt to curtail their powers without the contemporaneous approval of the people. It was not intended, however, to afford similar protection to appointed county officers. Yet the majority places such a gloss upon its terms by holding it applicable to a law which, as a practical matter, curtailed the power of the county manager, an appointed county officer, to the benefit of the county legislature.

To construe Local Law No. 1 as curtailing the power of the county legislature on the theory that any decrease in the power of the county manager effects a concomitant decrease in the power of the county legislature to bind a future legislature is, in my opinion, to place an unwarranted and overly technical construction upon the Municipal Home Rule Law (§ 34, subd 4). Carried to its logical conclusion, such a construction could be urged to require a permissive referendum on any local law amending a county charter for the purpose of removing power from the hands of an appointed county officer. For example, under the majority’s analysis, a local law designed to remove from a county manager, and vest in a county legislature, power over the preparation of the budget would be subject to a permissive referendum, for the simple reason that such legislation would curtail the enacting county legislature’s power to bind a future legislature to a term of office in which it had no control over the preparation of the budget. To so construe the Municipal Home Rule Law (§ 34, subd 4) would effect a transformation of its restriction upon the curtailment of the power of elective county officers to one upon the curtailment of the power of appointed county officers, a result never intended.

Accordingly, I would reverse the orders of the Appellate Division and declare Local Law No. 1 constitutional.

Fuchsberg, J.

(dissenting). Because I cannot agree that it curtails the powers of its county legislature, for the further reasons which follow I too would not find that Monroe County Local Law No. 1 of 1978 is inoperative in the absence of provision for a permissive referendum (NY Const, art IX, § 1, subd [h], par [2]; Municipal Home Rule Law, § 34, subd 4).

As I read Local Law No. 1, all it does is eliminate the prior four-year term of the county manager (an appointed officer whose powers and tenure are not protected by these particular constitutional and statutory provisions), and replace it with an indeterminate term, with the incumbent hereafter to be removable without cause by a majority vote of the whole legislature. As Justices Hancock and Denman pointed out in their dissent below, the powers of the legislature as a body are not diminished by this measure. If anything, they are considerably enhanced. Indeed, the only group of legislators whose decisions might be impaired by the new law are those who left office before it was adopted.

Plaintiffs’ argument that the power to fix the length of time an appointee will serve is separate and independent from, rather than an incident of, the power of appointment itself, finds support neither in logic nor in precedent. A mere variation in the procedure whereby an elective officeholder chooses or removes his appointees has not heretofore been held to trigger a permissive referendum (see Amico v Erie County Legislature, 36 AD2d 415, affd 30 NY2d 729) except, for instance, in such situations as when appointive powers were newly subjected to confirmation by another body (Matter of Doherty v Sanvidge, 58 Misc 2d 347) or, most appositely, when a previous right to remove without cause has been newly fettered (Matter of Fogarty v Warden, 191 Misc 916, affd 273 App Div 910, affd 297 NY 963).

The facts in Fogarty, which the majority correctly notes is a case on which I place heavy reliance, underline the point I make by indicating what the result would have to be if the situation were the converse of the one here. In Fogarty, the Newburgh City Charter stated that the city manager should hold office "during the pleasure of the council”. An attempt was made without referendum to alter this provision by adding a requirement that the manager could only be removed after the giving of notice and a public hearing. It was held that the amendment, which plainly imposed a severe limitation on the council’s discretion, was not operative because there had been no referendum. If a restriction on the power to remove without cause, as existed in Fogarty, was a curtailment, it can only follow that the adoption of such a provision in place of one inhibiting the local legislature’s removal power would be expansive.

The contention that the facets of the authority exercised by the legislature in appointing and removing a manager can be segregated into such water-tight categories as "appointment for a term of years” and "appointment subject to removal without cause” receives no sustenance from Fogarty. Semantic niceties cannot hide the reality that there is but a single power of appointment to be exercised and that the legislature’s range of freedom in doing so is not narrowed but broadened by Local Law No. 1.

The majority also attaches unwarranted significance to the supposedly "unique” character of the authorization of the local legislature to appoint an administrative officer for a fixed term to run beyond the terms of the appointing legislators themselves, parenthetically a power which it is not entirely clear could even be validly exercised (see Matter of Harrison Cent. School Dist. v Nyquist, 59 AD2d 434; Edsall v Wheler, 29 AD2d 622; cf. Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268, 275). In any event, since such a provision would operate only to the detriment of the successors in office of the individual legislators exercising it, it is inconceivable that the cited sections of the Constitution and Home Rule Law, which were intended to preserve the authority of incumbent elected officials, should be successfully invoked to bring about the effect they were meant to forestall.

Moreover, in stressing the need to guarantee the independence of the county manager from interference by the county legislature, a concept which draws on the doctrine of separation of powers so characteristic of our State and Federal governmental structures, the majority overlooks what is unique about the managerial form of local government. Far more analogous would be the relationship between the board of directors of a private corporation, in whom ultimate control resides and which, in that capacity, chooses corporate managers to implement its decisions. The whole idea behind the city or county manager form of government is to introduce modern and efficient business practices into municipal and regional government. By no means was it intended to weaken the power of the legislature, whose responsibility is directly to the people by whom it is elected. The manager, on the other hand, is responsible only to the legislature, by whom he is appointed. Notedly, he is not an elected official and he possesses no power of veto. Accordingly, no referendum and no managerial consent is needed to legislate a change in his term or power. (See, generally, Cort v Smith, 249 App Div 1, affd 273 NY 481; 2 McQuillin, Municipal Corporations, § 9.21.)

In contrast, the decision by a local legislature to make such a change, is not, in such circumstances as exist here, a diminution of its collective powers as an institution. Consequently, in acting to untie its hands in its supervision of its administrative subordinate, the Monroe County Legislature was acting in consonance with the purposes of the managerial form of government.

Accordingly, I would vote to declare Monroe County Local Law No. 1 of 1978 operative without referendum.

Chief Judge Breitel and Judges Jones and Wachtler concur with Judge Gabrielli; Judge Cooke concurs in a concurring opinion; Judges Jasen and Fuchsberg dissent and vote to reverse in separate dissenting opinions.

In each case: Order affirmed.

       Section 34 (subd 4) of the Municipal Home Rule Law provides that local law must be subject to a permissive referendum when it "curtails * * * any power of any elective county officer”.