Opinion 93-23

CONFLICTS OF INTEREST -- Electrical Services (chair of planning board who performs work for town and private parties) -- Interest in Contract (chair of planning board in contract with town for electrical services)

ZONING AND PLANNING -- Planning Boards (electrical contractor as chair of board)

GENERAL MUNICIPAL LAW, §§801, 803: Whether an electrical contractor who also is the chair of a town planning board has a prohibited interest in a contract with the town to perform electrical services must be determined on a case-by-case basis by examining the chair's powers and duties in connection with the specific contract. Even if the interest is not prohibited, disclosure would be required.
GENERAL MUNICIPAL LAW, §805-a: An electrical contractor who is chair of the town planning board and performs work for private parties may not disclose confidential information acquired in the course of his or her official duties, use such information to further his or her personal interests or agree to be paid for electrical services rendered in relation to any matter which is pending or must be brought before the planning board.

You ask whether a prohibited conflict of interest would arise if a local electrical contractor were to serve as chair of a town planning board and perform electrical work for the town or for private parties. For purposes of this inquiry, we assume a contract for town electrical work would be awarded pursuant to competitive bidding requirements or, if competitive bidding is not applicable, pursuant to the town's procurement policies and procedures adopted under General Municipal Law, §104-b.

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. Unless an exception applies (see General Municipal Law, §802), 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).

Thus, if the chair contracts to perform electrical work for the town, the chair would have an "interest" in the contract with the town because he or she would receive a pecuniary benefit from the contract. That interest would not be prohibited, however, unless the chair has any of the listed powers or duties in connection with the contract.

Although the chair would not have the listed powers or duties in connection with most town electrical contracts (see, e.g., 26 Opns St Comp, 1970, p 262), it is possible that he or she could have those powers or duties with respect to a given contract for electrical services, such as a contract for services in connection with subdivision review and approval (see, gen., Town Law, §271; 1990 Opns St Comp No. 90-14, p 32). Thus, whether a planning board chair has a prohibited interest in a contract with a town must be determined on a case-by-case basis by examining the chair's powers and duties in connection with the specific contract.

Assuming the chair does not have the listed powers or duties in connection with a contract, he or she, nonetheless, would be required to disclose his or her interest in accordance with General Municipal Law, §803. Also, the town's code of ethics should be examined to determine whether it contains any pertinent provisions. A town code of ethics must include provisions relative to private employment in conflict with official duties, and may contain provisions more restrictive than section 801 (see 1990 Opns St Comp No. 90-28, p 65; but see Opns St Comp No. 92-30, p 78, concluding that a code of ethics may not be "inconsistent" with article 18).

Besides prohibiting certain interests in contracts with municipalities, article 18 also prohibits certain actions of municipal officers and employees in connection with services performed for private parties. Paragraph (b) of subdivision (1) of section 805-a prohibits a municipal officer or employee from disclosing confidential information acquired in the course of his or her official duties or using such information to further his or her personal interests. Paragraph (c) of subdivision (1) of section 805-a provides that no municipal officer or employee shall:

receive, or enter into any agreement, express or implied, for compensation for services to be rendered in relation to any matter before any municipal agency of which he is an officer, member or employee or of any municipal agency over which he has jurisdiction or to which he has the power to appoint any member, officer or employee ...

In addition to any other penalties provided by law, any person who knowingly and intentionally violates section 805-a may be fined, suspended or removed from office or employment in the manner provided by law (General Municipal Law, §805-a[2]).

Section 805-a does not prohibit a planning board chair from performing private electrical contracting work. The chair, however, would be prohibited from disclosing confidential information acquired in the course of his or her official duties, or using such information to further his or her personal interests. The chair would also be prohibited from agreeing to be paid for electrical services rendered in relation to any matter which is pending or must be brought before the planning board (see Opn No. 90-28, supra; 26 Opns St Comp, 1970, p 150; see also Keller v Morgan, 149 AD2d 801, 539 NYS2d 589). Further, as previously suggested, the town's code of ethics may contain additional prohibitions or restrictions relative to the chair's performance of private electrical services.

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 or a code of ethics, 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). Thus, even if the performance of private electrical services does not violate the letter of article 18 of the General Municipal Law or the town's code of ethics, it is possible that the performance of such services could influence the chair's judgment or impair the discharge of his or her other official duties with respect to a given matter (see Parker v Town of Gardiner Planning Board, 184 AD2d 937, 585 NYS 2d 571, lv denied 80 NY2d 761, 592 NYS2d 670; Cahn v Planning Board of the Town of Gardiner, 157 AD2d 252, 557 NYS2d 488; Keller, supra; 1991 Opns St Comp No. 91-48, p 132). Therefore, in our opinion, when there is a reasonable likelihood that the performance of private electrical services may influence or impair a planning board chair's judgment or the discharge of his or her official duties in connection with a particular matter, the chair should not participate in either the discussion or vote on that matter.

August 9, 1993
Walter F. Garigliano, Esq., Planning Board Attorney
Town of Liberty