GENERAL MUNICIPAL LAW, §800(3); TOWN LAW, §29(15): A town
supervisor would not have a statutory conflict of interest if
the supervisor's spouse were appointed confidential secretary
or bookkeeper. The town's code of ethics, however, should
address the subject of employment of relatives or dependents of
town officers and the town supervisor should abstain from
discussions and votes of the town board on matters relating to
the confidential secretary or bookkeeper.
You ask whether it is still the opinion of this Office that there is no prohibited conflict of interest if a supervisor appoints his or her spouse to the position of confidential secretary or bookkeeper.
Town Law, §29(15) provides that the town supervisor of a town of the first class may designate a bookkeeper, a confidential secretary, or both. In towns of the second class, the town board must first authorize the supervisor to make such designations (Town Law, §29). The town board is required to fix a reasonable compensation for the services of the confidential secretary or bookkeeper (id.; Baum v Town Board of Town of Sand Lake, 98 AD2d 918, 470 NYS2d 912).
Article 18 of the General Municipal Law (§800 et seq.) contains the provisions of law relating to conflicts of interest of municipal officers and employees. Section 801 prohibits officers and employees from having an "interest" in a contract with the municipality if the officer or employee has any of the powers or duties listed in General Municipal Law, §801, and none of the exceptions contained in article 18 are applicable. Pursuant to General Municipal Law, §800(3), a municipal officer or employee has an interest in any contract with his or her municipality if he or she receives a direct or indirect pecuniary or material benefit as a result of that contract. In addition, pursuant to section 800(3)(a), a municipal officer or employee is deemed to have an interest in contracts of his or her spouse, except contracts of employment with the municipality which the officer or employee serves.
Based on the exception in section 800(3)(a), this Office has previously concluded that a town supervisor would not have a statutory conflict of interest if the supervisor appointed his or her spouse to the position of confidential secretary or bookkeeper (1979 Opns St Comp No. 79-391, unreported; 1970 Opns St Comp Nos. 70-62 and 70-323, both unreported; see also 1970 Atty Gen [Inf Opns] 90). This conclusion still represents the view of this Office.
While we conclude that there would be no statutory conflict in this situation, we note that General Municipal Law, §806 requires a town to adopt a code of ethics setting forth standards of conduct for the guidance of its officers and employees. A code of ethics may regulate or prescribe conduct which is not expressly prohibited by Article 18 and may prohibit conduct (see Belle v Town Board of the Town of Onondaga, 61 AD2d 352, 402 NYS 677). We believe that the employment of relatives or dependents of town officers is one of the subjects that should be addressed by a code of ethics. Therefore, we suggest that the town's code of ethics be consulted to determine whether it contains any pertinent provisions. Further, even if the town has determined through its code of ethics not to preclude the supervisor from appointing his or her spouse as confidential secretary or bookkeeper, it is our opinion that the supervisor should abstain from any discussions and votes of the town board on matters relating to the confidential secretary and bookkeeper so as to avoid the appearance of impropriety to the extent possible under these circumstances.
May 20, 1991