FILED: APPELLATE DIVISION - 4TH DEPT 08/09/2019 11:31 AM
NYSCEF DOC. NO. 6

CAE 19-01477

RECEIVED NYSCEF: 08/09/2019

To be Argued by:
Patrick Beath, Esq.
Time Requested: 10 Minutes
Appellate Division Docket No.: CAE 19-01477
Monroe County Clerk’s Index No.: E2019007046

New York Supreme Court

Appellate Division – Fourth Department
ROCHESTER CITY SCHOOL DISTRICT, and the BOARD OF EDUCATION OF THE
ROCHESTER CITY SCHOOL DISTRICT,
Petitioners-Respondents,
-againstCITY OF ROCHESTER, LOVELY A. WARREN as Mayor of the City of Rochester,
COUNCIL OF THE CITY OF ROCHESTER, and the MONROE COUNTY BOARD OF
ELECTIONS
Respondents-Appellants.

BRIEF OF RESPONDENTS-APPELLANTS CITY OF ROCHESTER, LOVELY A.
WARREN and COUNCIL OF THE CITY OF ROCHESTER

TIMOTHY R. CURTIN
CITY OF ROCHESTER
CORPORATION COUNSEL
PATRICK BEATH, ESQ.
Attorneys for Respondent-Appellants
City of Rochester, Lovely A. Warren and
Council of the City of Rochester
30 Church Street, Rm. 400A
Rochester, New York 14614
Telephone (585) 428-6812

 TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
QUESTIONS INVOLVED ........................................................................................1
STATEMENT OF THE CASE ..................................................................................2
STATEMENT OF FACTS ........................................................................................3
ARGUMENT .............................................................................................................9
POINT I: Local Law No. 4, “Our Children, Our Future,”
Is Not Preempted by State Law and Is Subject to a
Mandatory Referendum......................................................................... 9
SUBPOINT A: City Charter Sections 2-1, 2-8 and 2-13, As
They Pertain to Commissioners of Schools, Are Hybrid
State-Local Laws That Complement and Are Not Preempted
By the Education Law ....................................................................10
SUBPOINT B: The District’s Continued Payment of Salaries
to the Commissioners of Schools and the Commissioners’
Acceptance of Those Salaries Demonstrate That The
City Charter Sections to Be Amended By Local Law Number 4
Are Not Preempted by State Law and Continue to Have
Independent Legal Significance .....................................................18
POINT II: The Court Below Erred In Holding That the Mayor’s
July 12, 2019 Letter was Impermissibly Advocative..........................23
CONCLUSION ........................................................................................................28

i

 TABLE OF AUTHORITIES
CASES
Bd of Ed of City of Syracuse v. King, 280 AD 458 [4th Dept 1952] ............... 16, 17
Bd of Ed of City School Dist of City of New York v. City of
New York, 41 NY2d 535 [1977] ..........................................................................16
Dean v. State, 91 AD2d 805 [3d Dept 1982] ..........................................................19
Dean v. State, 111 Misc2d 97 [NY Ct Cl 1981] .....................................................19
Di Prima v Wagner, 10 NY2d 728 [1961] ..............................................................12
Di Prima v Wagner, 14 AD2d 36 [1st Dept 1961] ........................................... 11-12
DJL Rest. Corp. v City of NY, 96 NY2d 91 [2001] ................................................10
Garcia v NY City Dept. of Health & Mental Hygiene, 31 NY3d 601 [2018].... 10-11
Hedman v. City of Rochester, 64 AD2d 817 [1978] ...............................................16
James v Alderton Dock Yards, Ltd., 256 NY 298 [1931] .......................................23
Lanza v. Wagner, 11 NY2d 317 [1962] ..................................................... 14, 15, 17
Metzger v Swift, 258 NY 440 [1932] ......................................................................18
People v Diack, 24 NY3d 674 [2015]......................................................................11
Phillips v. Mauer, 67 NY2d 672 [1986] .......................................................... 25, 27
Schaefer v. Long Beach, 271 NY 81 [1936] ...........................................................19
Schultz v. McCall, 220 AD2d 984 [3d Dept 1995] .................................................25
Schultz v. State, 86 NY2d 225 [1995] .............................................................. 24, 27
Stern v. Kramarsky, 84 Misc2d 447 [NY Cty Sup 1975] .......................................25

ii

 STATUTES
Civil Practice Law and Rules § 3001................................................................................. 23
Education Law § 2553 ....................................................................................................... 22
Education Law § 2554 ................................................................................................. 20, 22
Education Law § 2573 ....................................................................................................... 20
Education Law § 2576 ....................................................................................................... 16
Municipal Home Rule Law .................................................................................................. 1
Municipal Home Rule Law §20 ........................................................................................... 7
Municipal Home Rule Law §23 ..................................................................................... 7, 10
NY Constitution, Article IX............................................................................................... 13
NY Laws of 1907, Chapter 755 ........................................................................11, 12, 20-21
NY Laws of 1909, Chapter 21 ......................................................................................12-13
NY Laws of 1910, Chapter 140 ......................................................................................... 13
NY Laws of 1917, Chapter 786 ......................................................................................... 13
NY Laws of 1971, Chapter 141 ................................................................................... 13, 14
Public Officers Law § 67 ............................................................................................ 19, 22
Rochester City Charter § 2-1 ...................................................................................... passim
Rochester City Charter §2-8 ....................................................................................... passim
Rochester City Charter § 2-13 .................................................................................... passim
SECONDARY MATERIALS
19 NY Jurisprudence 2d § 236........................................................................................... 19

iii

 QUESTIONS INVOLVED
I. Does the Municipal Home Rule Law require that City of Rochester Local Law
Number 4 of 2019, entitled “Our Children, Our Future,” which would amend the
Rochester City Charter to temporarily abolish the elective offices of
Commissioners of Schools and would reduce the salary of the Commissioners of
Schools during their current term, be subject to a mandatory referendum?
ANSWER: The Court below incorrectly held that the Municipal Home Rule
Law does not mandate a referendum on Local Law No. 4 and that the
referendum called for by Local Law No. 4 is advisory.

II. Does Mayor Warren’s letter of July 12, 2019 engage in impermissible advocacy in
favor of a “yes” vote on the referendum called for by Local Law No. 4?
ANSWER: The Court below incorrectly found that the July 12, 2019
informational letter was advocative.

1

 STATEMENT OF THE CASE
City of Rochester Local Law Number 4 of 2019, entitled “Our Children, Our
Future” was passed by Rochester City Council on June 18, 2019 and approved by
Rochester Mayor Lovely A. Warren on July 8, 2019. R.140-142. Section 5 of the Local
Law provided that it was to be submitted for the approval of the electors of the City of
Rochester at the general election to be held on November 5, 2019. Id.
On July 29, 2019, Petitioner-Respondents Rochester City School District
(“RCSD” or “District”) and Board of Education of the Rochester City School District
(“Board”) commenced this Article 78 Proceeding by Notice of Petition, Verified
Petition, and Order to Show Cause, seeking to declare the referendum called for by
Local Law No. 4 to be an unlawful advisory referendum and also seeking a permanent
injunction to restrain the City of Rochester, Rochester City Council and Mayor Warren
(collectively “City”) and the Monroe County Board of Elections from placing the
referendum on the November ballot. R.98-110. The City opposed the action, arguing
that the Board and District did not have standing to maintain the proceeding, that the
referendum called for by Local Law No. 4 was mandated by the Municipal Home Rule
Law and that statements by the City concerning the referendum were educational, not
advocative. R.150-154.

2

 On July 30 the District and the Board filed a Notice of Amended Petition and
Verified Amended Petition that purported to add two additional petitioners—School
Board President Van Henri White and School Board Vice President Cynthia Elliott.
R.233-242. City Respondents filed a Verified Answer to the Verified Amended Petition
on July 31, 2019 that raised a Counterclaim. R.260-267. On July 31, 2019, the District
and Board filed a Reply to the Counterclaim. R.268-271. The Monroe County Board of
Elections appeared in the case on July 30, 2019, and took no position as to the merits of
the proceeding. R.243. On August 1, 2019 the Court held argument. R.272
The Court issued a Decision, Order and Judgment (“Judgment”) on August 2,
2019, granting the relief sought by the District and the Board in the Verified Petition and
denying the City’s Counterclaim. R.81-97. The Judgment was entered that same day.
R.43-80. The City filed a Notice of Appeal on August 2, 2019 and an Amended Notice
of Appeal on August 5, 2019. R3-41.
STATEMENT OF FACTS
“The Rochester City School District is a system that has historically
underperformed. It is in dire need if improvement.” R.156, 165. So reports
Distinguished Educator Jaime R. Aquino, who was appointed by former State Education
Department Commissioner MaryEllen Elia in August of 2018 “to provide support in

3

 improving the District’s systems, structures, and operations, as well as to address
significant gaps in student services and academic performance.” Id.
In his November 14, 2018 report, the Distinguished educator found that “[o]ver
the years, parents, staff, community organizations, and other stakeholders have
expressed their frustrations with the school system and the continued lack of progress of
its students. Though the District has responded by implementing a number of strategies
and approaches aimed at improving student performance, most of these efforts have only
had minimal impact.” R.166. In diagnosing the reason for this minimal impact, the
Distinguished Educator highlighted that the District “has been plagued by high
leadership turnover, with five superintendents in the last ten years” and urged the Board
to “ask itself why it cannot retain its superintendents.” R.170-171. Further, the report
found that “Board Commissioners could not clearly define their roles and
responsibilities, which interfered with the Superintendent’s ability to lead effectively.”
R.171. The Board Commissioners were also found to “act as if they were the
superintendent trying to manage day-to-day operations off the District,” but the
Distinguished Educator found that assuming such management responsibilities had the
effect of “undermin[ing] the superintendent’s role.” Id. The Distinguished educator
further noted that “[t]hese observations pertain not only to the current Board, but also to
previous ones.” Id.
4

 The Distinguished Educator also found that “significant tensions have developed
among Board Commissioners, and between the Board and the Superintendent. Though
all of these participants have good intentions and want to do right by the students, the
behavior of district leadership does not always match their stated values and beliefs.” R.
179.
Altogether, the Distinguished Educator determined that “if RCSD’s schools are
going to transform into places where all students thrive, the District must undertake a
total reset of the way in which the District operates.” R.166. “The District’s goal must
be nothing short of total transformation, so that everyone will be proud to send their own
children to Rochester’s public schools.” R.177.
In an attempt to bring about this total transformation, State Education
Commissioner Elia and State Regents T. Andrew Brown and Wade Norwood have
outlined a Plan, which has been memorialized in legislation proposed in the State
Assembly, to temporarily remove elected members of the RCSD Board of Education and
replace them with a five-member “excellence task force” appointed by the Board of
Regents. R.112, 117-119, 156, 224-226.
Implementation of this Plan would require not only changes to State law, but also
to the City’s Charter. Specifically, the Rochester City Charter has, since its
implementation by the State Legislature in 1907, provided that the Commissioners of
5

 Schools that make up the Board are local elective officers. R.156. The 1907 Charter
established a City “Department of Public Instruction” which was to provide a free
education to the youth of the City. R.156-157. In furtherance of this goal, the 1907
Charter also created elective offices of Commissioners of Schools comprising the Board
of Education, which acted as the head of the Department of Public Instruction. Id. The
1907 Charter specified annual salaries to be paid to the Commissioners of $1,200.00. Id.
Much of this framework changed in 1917 when the State Education Law was
amended such that the Boards of Education “in each City of the State” were to comport
with and be controlled by State, not local, law. R.157. The 1917 law explicitly repealed
sections 381 through 404 of the City’s original 1907 Charter that had established the
Department of Public Instruction. Id. However, the 1917 law left undisturbed those
portions of the 1907 City Charter that created the Commissioners of Schools as elective
officers of the City and that set the salary for these Commissioners. Id. Accordingly,
even today, the City Charter and the State Education Law each independently (and
harmoniously) provide that the members of the Board of Education for the RCSD are to
be elected by the electors of the City of Rochester and serve terms of four years. Id. In
essence, each member of the Board simultaneously holds two largely overlapping
offices: an office created by the State Education Law and another created by Rochester

6

 City Charter; only the latter of these two offices allows for payment of the salary that
RCSD Board members have collected since 1907.
Given the foregoing legal framework, the City of Rochester realized that, in order
for the State Plan to replace the RCSD Board with an excellence task force to be
implemented, the City Charter had to be amended to eliminate the local elective offices
of Commissioners of Schools and the payments of salaries therefor. R.158.
Accordingly, the City of Rochester passed and adopted Local Law No. 4 of 2019,
entitled “Our Children, Our Future.” R.124-142, 158, 227-228. Local Law No. 4 seeks
to amend the Rochester City Charter to remove, for a five-year period, any reference to
“Commissioners of Schools” as elective offices of the City of Rochester and to eliminate
the authorization for the payment of salaries for these elective offices. Id.
While a local law amending the Charter can be passed by action of Council and
Mayor alone (see generally Municipal Home Rule Law (“MHRL”) § 20), where the
local law would “[a]bolish[] an elective office, or change[] the method of nominating,
electing or removing an elective officer, or change[] the term of an elective office, or
reduce[] the salary of an elective officer during his term of office” it is subject to a
mandatory referendum (see MHRL § 23(2)(e)). Because Local Law No. 4 amended the
City Charter to suspend for a period of five years the local elective offices of

7

 Commissioners of Schools and to eliminate the salaries therefor, it is to be subject to a
referendum. R.227-228.
On July 12, 2019, following the July 8, 2019 adoption of Local Law No. 4, “Our
Children, Our Future,” Mayor Warren continued to educate the public about the State
Plan, the local law and the upcoming referendum by sending a letter explaining the
Local Law and referendum. R. 143-144, 159. The letter recited the history of failure of
the RCSD, referred to the findings of the Distinguished Educator, related the history of
chronic turnover of superintendents, provided statistical information concerning student
performance under the current Board, explained the upcoming referendum, and
encouraged people to vote, so that “once and for all, we know exactly what you – our
parents and citizens – want.” R.144. The July 12, 2019 letter did not tell constituents
how to vote or exhort them to vote in a particular fashion. Id.
On July 29, 2019, the District and Board commenced this action to enjoin the City
from placing the referendum on the November ballot and to declare the referendum to be
advisory and Mayor Warren’s letter of July 12, 2019 to be unlawful advocacy in favor of
a “yes” vote on the referendum. R.98-107. The trial Court issued a Decision, Order, and
Judgment on August 2, 2019, which found that those sections of the Charter that Local
Law No. 4 sought to amend, specifically sections 2-1, 2-8 and 2-13, were fieldpreempted by State Law and that, accordingly, the referendum was advisory and not
8

 mandatory. R.81-97. The Court also found that the Board and District had standing to
maintain this proceeding and that the Mayor’s letter of July 12, 2019 was advocative,
rather than educational. Id.
The City now appeals the August 2, 2019 Order, because the determination that
City Charter Sections 2-1, 2-8 and 2-13 are preempted by State law was error, as was the
determination that the Mayor’s July 12, 2019 letter was advocative. 1
ARGUMENT
I.

Local Law No. 4, “Our Children, Our Future,” Is Not Preempted by State Law and
Is Subject to a Mandatory Referendum
The central holding of the decision below—and sole basis for determining that the

referendum called for by Local Law No. 4 is advisory—is that those sections of the City
Charter concerning the elective offices of Commissioners of Schools are field-preempted
by the State Education Law and, accordingly, are without independent legal authority,
rendering any alteration of those portions of the law “meaningless,” and any referendum
to effect such alteration “advisory.” In reaching this plainly erroneous holding, the
Court below outlined the field preemption doctrine in broad strokes while turning a blind
eye (or perhaps not turning an eye at all) to the history and present function of the laws
here at issue. Specifically, the Court failed to consider that (1) the Charter sections at

The Court’s August 2, 2019 Order and Judgment also denied the City’s Counterclaim. The City does
not appeal the denial of the Counterclaim. Nor does the City raise the standing argument on appeal.
9
1

 issue were originally enacted by the State Legislature in 1907 making them a co-equal
complement to the State Education Law but subject to revision at the local level in
accordance with the Municipal Home Rule Law; (2) the sole authority for the Board
members to be paid their salaries (which they continue to collect notwithstanding their
preemption argument) is through the very City Charter provisions that the Court below
found to be preempted and, therefore, without legal authority. Because City Charter
Sections 2-1, 2-8 and 2-13 are valid laws that establish the local elective offices of
Commissioners of Schools and salaries therefore, and because Local Law No. 4 would
eliminate for a period of five years those offices and the salaries therefor, a referendum
is mandated by Municipal Home Rule Law § 23(2)(e).
A. City Charter Sections 2-1, 2-8 and 2-13, As They Pertain to Commissioners of
Schools, Are Hybrid State-Local Laws That Complement and Are Not Preempted
By the Education Law
The Court below erroneously held that, notwithstanding the lack of any conflict
between City Charter §§ 2-1, 2-8 and 2-13 and the State Education Law, these Charter
provisions are preempted by State law because the “State unequivocally occupies the
entire field of public education.” R.87. “The State Legislature may expressly articulate
its intent to occupy a field, but it need not. It may also do so by implication” (DJL Rest.
Corp. v City of NY, 96 NY2d 91, 95 [2001]). “Intent to preempt the field may ‘be
implied from the nature of the subject matter being regulated and the purpose and scope
10

 of the [s]tate legislative scheme, including the need for [s]tate-wide uniformity in a
given area’” (Garcia v NY City Dept. of Health & Mental Hygiene, 31 NY3d 601, 618
[2018][quoting People v Diack, 24 NY3d 674, 679 [2015]][brackets original to Garcia]).
The Court below did not identify any express articulation of the State’s purported intent
to occupy the field of public education, and relied instead on language in the New York
Constitution, the New York State Education Law and prior Court decisions to conclude
that field preemption was implied and that, because State law occupied the field, the
subject Charter provisions must fail. Yet in reaching this conclusion, the Court below
failed to realize that these provisions of the Rochester City Charter are, themselves,
enacted by the State legislature and, as such, comprise the “field” along with the
Education Law—they complement the Education Law and are not preempted thereby.
They operate in conjunction with State law, not in spite of State law.
The Rochester City Charter was passed by the State legislature in 1907 and
established a form of government for the City of Rochester (see L 1907, ch 755). As the
Courts have explained:
The granting of city charters is purely a legislative function
which was originally exercised by the Legislature itself with or
without regard to the wishes of the local population as the
Legislature saw fit, and it was not until 1914 that any restriction
was put on the power (Optional City Government Law; L.
1914, ch. 444). And it was not until 1923 that the Legislature
even had the power to delegate to the cities the right to adopt a
11

 charter by local law (Matter of Mooney v. Cohen, 272 N. Y.
33).”]). This was by virtue of the constitutional home rule
amendment (art. IX, § 11 at that time art. XII, § 2).
(Di Prima v Wagner, 14 AD2d 36, 40 [1st Dept 1961][emphasis added] affd Di Prima v
Wagner, 10 NY2d 728 [1961]). As such, the Rochester City Charter has the authority of
State law, but may be altered by either the State legislature or local government in
accordance with the Municipal Home Rule Law.
Local Law No. 4 seeks to amend City Charter §§ 2-1, 2-8 and 2-13 to remove any
reference therein to Commissioners of Schools as elective offices under the Charter.
These Charter provisions concerning Commissioners of Schools have been a part of the
City Charter since 1907. The 1907 Charter established a City “Department of Public
Instruction” which was to provide a free education to the youth of the City (L 1907, ch
755 at §§ 381-405). In furtherance of this goal, the 1907 Charter created local elective
offices of Commissioners of Schools comprising the Board of Education, which acted as
the head of the Department of Public Instruction (L 1907, ch 755 at §§ 14, 17). The
1907 Charter also specified annual salaries to be paid to the Commissioners (id. at § 21).
These provisions establishing Commissioners of Schools as elective local offices with
four-year terms and salaries are presently set forth at Charter §§ 2-1, 2-8 and 2-13.
In 1909, two years after the State implemented the Rochester City Charter, the
Education Law was established as Chapter 21 of the Consolidated Laws (see L 1909, ch
12

 21; L 1910, ch 140). Thereafter, in 1917, the State Education Law was amended such
that the Boards of Education “in each City of the State” were to comport with and be
controlled by State, not local, law (L 1917, Ch 786). The 1917 law explicitly repealed
sections 381 through 404 of the City’s original 1907 Charter, which sections established
the Department of Public Instruction. However, the 1917 law left undisturbed those
portions of the 1907 City Charter that established the Commissioners of Schools as
elective officers of the City and that set the salary for these Commissioners—those
Charter provisions remain good law today.
The Court below began its preemption analysis with the NY Constitution, which,
at Article IX, Section 3, reserves to the State legislature the power to legislate
concerning the “maintenance, support or administration of the public school system.”
This Constitutional language is entirely consistent with the forgoing history and current
provisions of the City Charter—it was the State legislature that established (and since
that time has chosen not to disturb) those City Charter provisions establishing School
Commissioners as local elective offices with salaries authorized exclusively through the
Rochester City Charter. And as the Education Law has changed, the City’s Charter has
been amended by the State so as to harmonize with the Education Law. For instance, in
1971, the Education Law was amended to increase the number of members of the RCSD
Board of Education from five to seven (see L 1971, ch 141 at §1). The State law
13

 amending this portion of the Education Law specifically provided that “[t]he charter of
the city of Rochester is hereby amended to conform with the provisions of this act” (L
1971, ch 141 at §4). Thus, far from construing the Education Law as preempting the
Rochester City Charter, the State legislature has continued to treat the Rochester City
Charter as an independent source of law and has amended the City Charter as necessary
to maintain consistency between these two coequal and complementary laws. The State
has implemented, amended and maintained these Rochester City Charter provisions in
furtherance of its Constitutional obligation to provide for the “maintenance, support or
administration of the public school system.”
None of the cases relied upon by the Court below undermine the foregoing
analysis of the non-preemptive relationship between these provisions of the City Charter
and the State Constitution and Education Law. Lanza v. Wagner, 11 NY2d 317 [1962]
involved a challenge by three former elected New York City School Board members
who were removed from office as a result of changes to State law that enabled the
Mayor to directly appoint Board members. The former board members argued that the
State legislation violated the local voters’ rights under the home rule provisions of the
State Constitution. In dismissing the suit, the Court of Appeals held that the members of
New York City’s Board of Education were not “city officers” for purposes of the home
rule section of the State Constitution. However, there was no evidence in Lanza that the
14

 New York City Charter expressly identified Commissioners of Schools as local elective
offices, as the Rochester City Charter does here. Lanza, therefore, is not on point.
Lanza is instructive, though, insofar as it illustrates that the Rochester City Charter
amendments to be effected by Local Law No. 4 are specifically aimed at avoiding a
situation like that which led to the protracted Lanza litigation. The City of Rochester
anticipates that the State will take action similar to the legislation that precipitated
Lanza—the removal of elected School Board members and appointment of new
members. By enacting Local Law No. 4, Rochester will amend its Charter to eliminate
any potential conflict between the Charter and revised State Law so that any such State
legislation may be implemented more effectively and efficiently than in Lanza (i.e.
without litigating to the Court of Appeals). In short, the City agrees with the holding in
Lanza that the State has the authority to pass legislation removing elected RCSD Board
members—but that does not rob the City of its own coequal authority to amend its
Charter in accordance with the Municipal Home Rule Law to pave the way for just such
reform at the state level. 2
2

The City recognizes that, given the hybrid State-local nature of these portions of the City Charter, the
State could itself amend the Charter simultaneous to passing legislation at the State level to remove the
current board and appoint an excellence task force. But the City does not have to wait for that moment
or hope that the State amends the Charter in a manner satisfactory to the City—the Municipal Home
Rule Law provides the City independent authority to amend its own Charter, and that is exactly what
Local Law No. 4 proposes to do. To take from the local government the right to amend its own Charter
would violate the rights of local governments under Article IX of the Constitution.
15

 The other cases relied upon by the Court are similarly inapt. 3 The Court contends
that the Fourth Department case of Hedman v. City of Rochester, 64 AD2d 817 [1978]
speaks to the “precise point” at issue in this litigation. Yet Hedman did not address the
status of Commissioners of Schools as local elected officials or the interplay of the
Rocheter City Charter and the State Education law. Rather, Hedman determined that the
City of Rochester cannot be legally liable for injuries occurring on school property,
because such property “is under the exclusive control of the Rochester City School
District which is a separate legal entity from the defendant city” (id. at 818). The
Charter provisions here at issue do not concern premises liability—far from addressing
the “precise point” before the Court, Hedman is a distraction from the real issue.
Bd of Ed of City of Syracuse v. King, 280 AD 458 [4th Dept 1952](“King”) is also
inapt. There, the Court held that the City of Syracuse did not have authority under
Education Law § 2576 or any other law to oversee the expenditures of the School
District so long as expenditures remained “within the total amount appropriated” in the
budget (id. at 460-461). The only reference to the Syracuse City Charter in that case was
a far cry from the language of the Rochester City Charter at issue here:
The only reference to the ‘Department of education’ in the city
charter is section 21 which completely nullifies any claim of
3

The matter of Bd of Ed of City School Dist of City of New York v. City of New York, 41 NY2d 535
[1977] hardly calls for any analysis as it simply parrots the holding of Lanza at page 542 and,
accordingly, is distinguishable on the same grounds.
16

 right of the city council, board of estimate or city auditor to
reaudit or approve or disapprove expenditures of educational
moneys from the fund credited to the board of education in the
hands of the city treasurer so long as the expenditures are for
educational purposes and do not exceed the appropriation.
Section 21 of the city charter reads: ‘Department of education.
This charter shall not apply to or affect the maintenance,
support or administration of the educational system’.
(Id. at 462-463). Unlike the Rochester City Charter which, through State legislation,
explicitly makes Commissioners of Schools local elective offices, the Syracuse City
Charter expressly disclaimed any application to the “maintenance, support or
administration of the educational system.” King has no bearing on the instant matter.
In short, without engaging in any real analysis of the provenance, status and
interaction of the laws here at issue, the Court below collected a series of sound bites
from disparate appellate cases standing for the proposition that “public education shall
be beyond the control by municipalities and politics” (Lanza, 11 NY2d at 326 [1962]).
Yet here, the State legislature, pursuant to its Constitutional authority to provide for the
“maintenance, support or administration of the public school system,” specifically
enacted Rochester City Charter provisions establishing Commissioners of Schools as
local elective offices and providing for payment of a salary to those Commissioners.
The State legislature has amended these portions of the Charter from time to time, but
has never repealed them (despite having repealed other sections of the City Charter that
17

 concerned public education). Thus, while matters of public education may typically “be
beyond the control of municipalities,” in this specific instance, the State legislature has
purposefully and expressly given to the City of Rochester a measure of control of the
public education system as set forth in Charter §§ 2-1, 2-8 and 2-13 by making
Commissioners of Schools local elective officials (accord Metzger v Swift, 258 NY 440,
443 [1932][“True indeed it is that education is a State or governmental function. This
does not mean that one fulfilling such a function is invariably a State as distinguished
from a city officer”][internal citations omitted]). These sections of the City Charter,
established through State legislative action and holding the authority of State law,
complement and operate in conjunction with the Education Law—they are not
preempted by the Education Law. As such, the City is entitled to amend these laws as it
would any other portion of its Charter. Where, as here, those amendments would abolish
an elective office and reduce the salaries of elective officers, they are subject to a
mandatory referendum pursuant to the Municipal Home Rule Law.
B. The District’s Continued Payment of Salaries to the Commissioners of Schools
and the Commissioners’ Acceptance of Those Salaries Demonstrate That The City
Charter Sections to Be Amended By Local Law Number 4 Are Not Preempted by
State Law and Continue to Have Independent Legal Significance
The foregoing historical and legal analysis establishing that City Charter §§ 2-1,
2-8 and 2-13 are not preempted by State law and, in fact, complement the State
18

 Education Law, is reinforced by the District’s history of payment of salaries to the
School Commissioners over the past 112 years, and the Commissioners’ acceptance
thereof. The sole legal authority for such payments are Rochester City Charter §§ 2-1,
2-8 and 2-13.
It is black letter law in New York that “a public officer may only collect and retain
such compensation as is specifically provided by law” (19 NY Jur 2d Civil Servants and
Other Public Officers and Employees § 236). “If a salary or compensation is fixed
without any authority in law, a public officer cannot recover for services rendered as he
cannot base his claim upon any valid provision of law awarding him a salary or
compensation” (Schaefer v. Long Beach, 271 NY 81, 86 [1936]). “Public policy,
embodied in the State Constitution, statute, and the common law, prohibits a public
officer from being compensated for his services unless there is statutory authority to do
so” (Dean v. State, 111 Misc2d 97, 98 [NY Ct Cl 1981], affd Dean v. State, 91 AD2d
805 [3d Dept 1982]). Public Officers Law § 67(1) provides that “[e]ach public officer
upon whom a duty is expressly imposed by law, must execute the same without fee or
reward, except where a fee or other compensation therefor is expressly allowed by law”

19

 and subjects a public officer who receives compensation without such statutory authority
to criminal liability and “treble damages.”4
Thus, without a statutory basis, salary payments or other compensation paid to the
Commissioners of Schools are not authorized and may expose those taking such funds to
criminal prosecution and triple damages. Nothing in the State’s Education Law provides
a statutory basis to compensate the RCSD Board members. While Education Law §§
2554 and 2573 give the Board of Education the authority to create, staff and pay the
positions of “superintendent of schools, such associate, assistant, district and other
superintendents, examiners, directors, supervisors, principals, teachers, lecturers, special
instructors, medical inspectors, nurses, auditors, attendance officers, secretaries, clerks,
custodians [and] janitors,” there is no provision in the Education Law for the Board of
Education to establish or pay its Commissioners’ salaries.
Since 1907, the sole statutory authority for the payment of RCSD Board member
salaries has been the Rochester City Charter. Article II, § 17 of the original 1907
Charter provided:
The annual salary of the mayor is five thousand dollars; of the
comptroller, three thousand five hundred dollars; of the
4

School Board members are public officers under the Public Officers Law (see, e.g., Komyathy v Bd. of
Educ., 75 Misc 2d 859, 860 [Dutchess Cty Sup 1973][“Plaintiff and the six other individuals which
comprise the defendant school board are public officers within the meaning the section 2 of the Public
Officers Law”][citing Metzger v. Swift, 258 NY 440[1932]).
20

 treasurer, three thousand five hundred dollars; of each
commissioner of schools, twelve hundred dollars; of the
president of the common council, one thousand dollars; of each
alderman, seven hundred and fifty dollars. The salary of each
midwife examiner is ten dollars per day for each day actually
engaged in the performance of duties as such.
(L 1907, ch 755)(emphasis added). This section of the Charter concerning the salary to
be paid to Commissioners of Schools has undergone a number of revisions and was
amended most recently in 1979 to read at present as follows:
§2-13 Salaries of School Board members
The annual salary of each Commissioner of Schools and the
annual salary of the President of the School Board shall be
prescribed by the School Board of the Rochester City School
District, within the limits of the total annual appropriation for
school purposes, and for so long as all the members of the
School Board are elected, and provided that changes shall take
effect on the first day of the next fiscal year.
This section of the Rochester City Charter continues to provide the sole statutory
authority for payment of salaries to RCSD Board members. Counsel for the Board and
District admitted this fact during oral argument. R.275 (admitting that “[t]he City
Charter is the only law currently on the books wherein the Board of Education members’
salaries are discussed.”). And it is exclusively under the authority granted by this
Charter provision that the RCSD Board has seen fit to pay its members at rates higher
than any other School Board in the State. R.155, 160-162.
21

 The District’s payment of these salaries and the Board members’ acceptance
thereof, all pursuant to Charter Section 2-13, further prove that the City Charter and the
Education Law are valid laws that operate in tandem—that each RCSD Board member
effectively holds dual elective offices: one under § 2553 of the Education Law, pursuant
to which the Board member exercises the authority granted to Boards of Education under
Education Law § 2554, and a second local elective office under §§ 2-1 and 2-8 of the
Rochester City Charter, which office entitles these Board members to the payment of a
salary under Charter § 2-13. That these sections of the City Charter are not preempted
by the Education Law is made plain by the Board members’ continued acceptance of
salaries. If, contrarily, Board members have accepted these salaries despite their belief
that City Charter §§ 2-1, 2-8 and 2-13 are preempted by State law and, therefore, of no
effect, they may be answerable in triple damages for any unauthorized monies taken
from the public fisc (Public Officers Law §67).5
The payments of salaries to locally elected Commissioners of Schools pursuant to
Rochester City Charter §§ 2-1, 2-8 and 2-13 demonstrate that these Charter provisions
are not preempted. The City, therefore, may amend these provisions by Local Law just
as it may amend any other provisions in its Charter. But because the amendments called

5

In the unlikely event that this Court were to affirm the decision below and hold that these City Charter
provisions are preempted by State Law, this Court should also clearly declare that, accordingly, there
exists to basis at law for RCSD Board members to continue to draw their salaries.
22

 for by Local Law No. 4 would abolish the elective offices of Commissioners of Schools
and reduce the salaries therefor during the Commissioners’ terms, a referendum is
mandated by the Municipal Home Rule Law. The referendum is not advisory and
should appear on the November 2019 ballot.
II.

The Court Below Erred In Holding That the Mayor’s July 12, 2019 Letter was
Impermissibly Advocative
CPLR § 3001 provides that the trial court may “render a declaratory judgment

having the effect of a final judgment as to the rights and other legal relations of the
parties to a justiciable controversy[.]” “The use of a declaratory judgment, while
discretionary with the court, is nevertheless dependent upon facts and circumstances
rendering it useful and necessary. The discretion must be exercised judicially and with
care” (James v Alderton Dock Yards, Ltd., 256 NY 298, 305 [1931]). “Where there is no
necessity for resorting to the declaratory judgment it should not be employed” (id.).
Here, the District and Board raised the July 12, 2019 letter in support of their
application to restrain the City from expending public funds in support of a purportedly
advisory referendum, but admitted at oral argument that they were not seeking any relief
concerning the July 12, 2019 letter and could not articulate the manner in which they had
been caused any harm by the letter. R.279-280. Because the letter did not cause the
petitioners any harm and because they sought no particular relief relative to the letter, it
23

 was not necessary for the Court to decide any issue concerning the letter and was an
abuse of discretion to reach that issue. The portion of the Order and Judgement
concerning the letter should be reversed for this reason alone.
But the Court’s determination was also wrong on the merits. Under the New York
Constitution, public funds may not be used “to pay for the production and distribution of
campaign materials for a political party or a political candidate or partisan cause in any
election” because such would “constitute a subsidization of a nongovernmental entity—a
political party, candidate or political cause advanced by some nongovernmental group”
(Schultz v. State, 86 NY2d 225, 234 [1995]). But such funds may be expended “to
educate, to inform, to advocate or to promote voting on any issue . . . provided it is not to
persuade nor to convey favoritism, partisanship, partiality, approval or disapproval by a
State agency of any issue, worthy as it may be” (id. at 234-235 [internal quotation
omitted]).
While the trial Court cited at length from Court of Appeals cases and Appellate
Division cases articulating the distinction between advocacy and education, it failed to
engage in any meaningful analysis of the actual content of the Mayor’s July 12, 2019
missive. Rather, the Court gave the conclusory assurance that it had “carefully
examined the July 12th letter” and found it to advocate some position—yet the Court
remained mum as to what position it found the letter to have advocated. The Court
24

 proclaimed that “[t]he letter’s message is a loud and clear endorsement of the
Referendum, and strongly suggests that the voter should be too [sic].” R.93. Setting
aside the glaring grammatical problems with this sentence, there is nothing wrong with a
“loud and clear endorsement of the Referendum”—the referendum is the act of voting
the Local Law up or down. An endorsement of the referendum is just what the Mayor
set out to do: educate the public about the referendum and encourage them to get out and
vote.6
The Order’s next sentence reads: “Although the letter does not squarely tell the
residents what their vote should be, i.e., yes or no, it nevertheless conveys that same
recommendation.” Here, the Court admits that nowhere does the Mayor’s letter tell
readers how to vote—as such, it is easily distinguishable from Phillips v. Mauer, 67
NY2d 672 [1986], Schultz v. McCall, 220 AD2d 984 [3d Dept 1995], Stern v.
Kramarsky, 84 Misc2d 447 [NY Cty Sup 1975], each of which involved the government
entity expressly advocating for a particular “yes” or “no” vote on a pending proposition.
But the Court faults the letter for “nevertheless convey[ing] that same recommendation.”
What recommendation? The Court doesn’t say. The Court does not set forth a single

6

The second phrase of the quoted sentence (“and strongly suggests that the voter should be too”) is
difficult to comprehend but seems to reflect the fact that the letter is encouraging readers to vote on the
referendum question just as Mayor Warren will be doing.
25

 passage from the letter to exemplify the “conveyance” of any purported
“recommendation.”
The trial Court goes on: “From the letter’s phrasing, the author’s position is
evident.” What phrasing evidences the author’s position? We never find out—the Court
again fails to cite to any language in the letter. What position does the Court find the
author to have taken? Again—no answer. No citations. No analysis.
Next sentence: “In fact, the letter’s ending asks the reader to ‘join with me and
vote.’” The Court’s rhetoric here suggests that this is some smoking gun demonstrating
the Mayor’s illicit advocacy—but it is just the opposite: it is a ringing endorsement of
the propriety of the letter. The Mayor is encouraging the electorate to get to the polls,
which is exactly what she, herself, will be doing come election day. She is exhorting
readers to vote, not telling them how to vote.
The Court concludes the paragraph: “In isolation, this could appear innocuous, but
construed with the entirety of the letter, it smacks of prohibited activity.” What could
appear innocuous? The mayor’s initial “loud and clear endorsement of the
Referendum”—yes, the endorsement of the right to vote is innocuous. The fact that the
Mayor “does not squarely tell the residents what their vote should be”? Innocuous. That
the letter tells the readers that the Mayor will be voting and they should too? Innocuous
again. The Order cites nothing but innocuous statements all calculated to educate the
26

 public and get people to the polls—what led the Court to exclaim that the letter “smacks
of prohibited advocacy” remains a mystery.
Sometimes, of course, facts speak for themselves. The Mayor’s letter recounts a
series of facts about the long-term failings of the RCSD and the conclusions of the
Distinguished Educator calling for a total reset of the governance of the District. These
facts alone may have suggested to the Court below that there was really only one way to
vote on the referendum—or they may not have: the Court simply doesn’t tell us what
language in the letter led it to its conclusions. Whatever the case may be, the July 12,
2019 letter was not an outright encouragement to vote one way or another and it was not
“patently designed to exhort the electorate to [make an avowed, public commitment] in
support of a particular position advocated by [one political faction]” (Schulz v State, 86
NY2d at 236 [quoting Phillips, 67 NY2d at 674][brackets original to Schulz]). As such,
the determination of the Court below was error.

27

 CONCLUSION
For all the above reasons, the City respectfully requests that this Court reverse the
Order and Judgment below, deny the permanent injunction, dismiss the petition and
grant to the City respondents their costs, fees and disbursements in this action. In the
unlikely event that the Court affirms the decision below that City Charter §§ 2-1, 2-8 and
2-13 are preempted by State law, the Court should acknowledge that there is no statutory
basis for the RCSD Board members to be paid a salary unless and until the State amends
the Education Law to provide for such compensation.

Respectfully submitted,
TIMOTHY R. CURTIN
Corporation Counsel

/s/ Patrick Beath
PATRICK BEATH, Esq.
Attorneys for Respondent-Appellants
City of Rochester, Lovely A. Warren and
Council of the City of Rochester
30 Church Street, Room 400A
Rochester, New York 14614
Telephone: (585) 428-6812
patrick.beath@cityofrochester.gov

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