Opinion 92-22


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

 
CONFLICTS OF INTEREST -- Contracts (representation of owners of property located outside municipality in assessment review proceedings)
PUBLIC OFFICERS AND EMPLOYEES -- Ethics (village comptroller representing owners of property located outside village in assessment review proceedings)

GENERAL MUNICIPAL LAW, §§800(2), 805-a(1)(c), (d): The comptroller of a village which prepares its own assessment roll may maintain a private tax certiorari practice limited to representing the owners of property located outside the village without violating article 18 of the General Municipal Law.

You ask whether a village comptroller may maintain a private tax certiorari practice limited to representing the owners of property located outside the village. We have been advised that the village has created the position of comptroller by local law and that the village prepares its own assessment roll utilizing the assessments on the county assessment roll as a guide. We assume that the comptroller's private practice generally involves representations in administrative or judicial proceedings brought for the purpose of reducing the assessments of real property for tax purposes.

Article 18 of the General Municipal law (§800 et seq.) contains the provisions of law which relate to conflicts of interest of municipal officers and employees. 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. That interest is prohibited if the officer or employee, individually or as a member of a board, has the power or duty to: (a) negotiate, prepare, authorize or approve the contract or approve payments thereunder; (b) audit bills or claims under the contract; or (c) appoint an officer or employee who has any such powers or duties (General Municipal Law, §801), and none of the exceptions contained in article 18 are applicable (see General Municipal Law, §802).

The term "contract" for purposes of article 18 is defined to mean any claim, account or demand against or agreement with a municipality (General Municipal Law, §800[2]; see also Rose v Eichorst, 42 NY2d 92, 396 NYS2d 837). Since the representations in this instance would be performed pursuant to contracts between the comptroller in his private capacity and private property owners, and pertain to property which is not assessed by village officials or for village purposes (see Real Property Tax Law, §1402[1],[2]; see also Real Property Tax Law, §§523[1][a], 1408, pertaining to administrative review of assessments on village assessment rolls), it appears that the comptroller's private practice does not involve a "contract" with the village for purposes of article 18. Therefore, the comptroller would not have a prohibited interest in a "contract" under section 801.

In addition to prohibiting certain interests in contracts, article 18 also prohibits certain actions of municipal officers and employees. Section 805-a(1)(c) prohibits a municipal officer or employee from receiving, or entering into any agreement for compensation for services to be rendered in relation to any matter before any agency of the municipality of which he is an officer, member or employee, over which he has jurisdiction, or to which he has appointment power. Section 805-a(1)(d) prohibits such agreements where the compensation of the municipal officer is to be contingent upon any action by any municipal agency. Inasmuch as the comptroller's private practice is limited to representing the owners of property which is not assessed by village officials, it appears that the practice does not involve services rendered in relation to any matter before any officer, body or other agency of the village. Therefore, the comptroller's private practice would not violate these provisions of section 805-a.

The village code of ethics, however, should be examined to determine whether it contains any pertinent provisions. In this regard, we note that General Municipal Law, §806(1) requires the village to have a code of ethics setting forth for the guidance of its officers and employees standards of conduct reasonably expected of them. A code of ethics may regulate or prescribe conduct which is not expressly prohibited by article 18, and may provide for the prohibition of conduct.

Finally, we note that the courts of this State have held public officials to a high standard of conduct and, on occasion, have negated certain actions which, although not violating the literal provisions of article 18 of the General Municipal Law, violate the spirit and intent of the statute, are inconsistent with public policy, or suggest self-interest, partiality or economic impropriety (see e.g. Zagoreos v Conklin, 109 AD2d 281, 491 NYS2d 358; Matter of Tuxedo Conservation and Taxpayers Ass'n v Town Board of the Town of Tuxedo, 69 AD2d 320, 418 NYS2d 638; Conrad v Hinman, 122 Misc 2d 531, 471 NYS2d 521; see also Cahn v Planning Board of the Town of Gardiner, 157 AD2d 252, 557 NYS2d 488). In our view, however, these considerations are not implicated in this instance because by representing only the owners of property located outside the village the comptroller's private practice appears to have no relation to any action by or on behalf of the village.

August 17, 1992
Eugune J. Murray, Mayor
Village of Rockville Centre