Opinion 97 - 11

CITIES -- Powers and Duties (authority to establish financial disclosure requirements for housing authorities)

CONFLICTS OF INTEREST -- Financial Disclosure (applicability to housing authorities)-- Public Housing Authorities (applicability of city financial disclosure requirements)

MUNICIPAL CORPORATIONS -- Powers and Duties (authority to establish financial disclosure requirements for housing authorities)

PUBLIC HOUSING AUTHORITIES -- Officers and Employees (applicability of municipal financial disclosure requirements)

GENERAL MUNICIPAL LAW, §§800(4), (5), 810(1), (3), 811(1); Public Housing Law, §36: Article 18 of the General Municipal Law does not authorize a city to require members of the city's housing authority to complete and file an annual financial disclosure form promulgated by the city.

You ask whether article 18 of the General Municipal Law authorizes a city to require the members of the housing authority established for the city to complete and file an annual financial disclosure form promulgated by the city.

Article 18 of the General Municipal Law (§800 et seq.), as amended by chapter 813 of the Laws of 1987, provides for a system of annual financial disclosure by localities. Insofar as here relevant, section 811(1)(a) of the General Municipal Law authorizes the governing body of any "political subdivision", and any "municipality" which is not a "political subdivision", to adopt a local law, ordinance, or resolution promulgating its own form of annual statement of financial disclosure which is designed to assure disclosure by "municipal officers and employees" of such financial information as is determined necessary by the governing body⁽¹⁾. Any such local enactment must specify by name of office or by title or classification those "municipal officers and employees" required to complete and file the annual statement of financial disclosure (id.). In addition, section 811(1)(c) refers to the completion and filing of such forms or statements by any "local . . . officer or employee" (see also General Municipal Law, §811[1][b], referring to "local . . . officers and employees").

Section 800(5) defines the phrase "municipal officer or employee" as "an officer or employee of a municipality, whether paid or unpaid, including members of any administrative board, commission or other agency thereof . . ." (emphasis supplied). Further, section 810(3) defines the phrase "local officer or employee", in relevant part, as "the heads (other than local elected officials) of any agency, department, division, council, board, commission, or bureau of a political subdivision . . ." (emphasis supplied). As used in section 811, the term "municipality" includes a city (see General Municipal Law, §800[4]), and the term "political subdivision" includes a city having a population of 50,000 or more (see General Municipal Law, §810[1]). Neither term, however, expressly includes a municipal housing authority.

As to whether a housing authority is an "agency" of the city for this purpose, it is clear that a municipal housing authority has a corporate existence separate and apart from the municipality for which it is created (see Public Housing Law, §3[2]; see also 1988 Opns St Comp No. 88-64, p 126). Therefore, it has been our opinion that members of a municipal housing authority are not officers of the municipality, and a housing authority is not an "agency" of a "municipality" or "political subdivision" for purposes of article 18 of the General Municipal Law (see 1983 Opns St Comp No. 83-13, p 14; 1982 Opns St Comp No. 82-166, p 213; 1981 Opns St Comp No. 81-149, p 154; 1979 Opns St. Comp No. 79-267, unreported; Opns St Comp, 1975, No. 75-962, unreported; Opns St Comp, 1974, No. 74-682, unreported; 27 Opns St Comp, 1971, p 73; Opns St Comp, 1970, No. 70-832, unreported; 26 Opns St Comp, 1070, p 17; Opns St Comp, 1969, Nos. 69-1002, 69-649 and 69-124, unreported)⁽²⁾.

Thus, in our view, a member of a municipal housing authority is not a "municipal officer or employee" or "local officer or employee" within the meaning of sections 800(5) and 810(3). Accordingly, it is our opinion that article 18 of the General Municipal Law does not authorize a city to require the members of the city's housing authority to complete and file an annual financial disclosure form promulgated by the city.

In reaching this conclusion, however, we note that section 36 of the Public Housing Law prohibits members and employees of a municipal housing authority from having any direct or indirect interest in contracts with the housing authority. In our view, a housing authority should take reasonable measures to ensure compliance with section 36 and avoid entering into such contracts (see Public Housing Law, §37[w]-[y], [bb]; cf. Rapp v Carey, 44 NY2d 157, 404 NYS2d 565; Board of Education of the City School District of the City of New York v New York State Public Employment Relations Board, 75 NY2d 660, 555 NYS2d 659).

May 23, 1997
Michael Brockbank, Esq., Corporation Counsel
City of Schenectady

Richard Della Ratta, Esq., Counsel
Schenectady Municipal Housing Authority

1. In the event that a "political subdivision" failed to adopt a local enactment requiring use of an authorized form of annual statement of financial disclosure by January 1, 1991, the financial disclosure requirements of section 812 became applicable to that political subdivision (General Municipal Law, §811[2]). Section 812 provides that such a "political subdivision" must require, among other things, that each of its "local officers and employees" file the annual statement of financial disclosure prescribed in that section (General Municipal Law, §812[1][a]).

2. We note that section 810(12)(b) defines the term "local agency" as including certain public benefit corporations, such as a municipal housing authority (see General Construction Law, §66[4]; see also General Municipal Law, §810[4]; Public Housing Law, §30). In our view, however, the terms "agency" of a municipality or political subdivision and "local agency" were not intended to be synonymous. The term "local agency" is used in another context in the annual financial disclosure provisions of article 18 (see General Municipal Law, §§812[5], 813[9][j]). Moreover, the definition of "local officer or employee" in section 810(3) was specifically amended to provide that the members, officers and employees of industrial development agencies or authorities, which are also public benefit corporations within the meaning of the term "local agency" (see, General Municipal Law, §856[2]; Public Authorities Law, §§1952, 2304), are deemed officers or employees of the municipality for whose benefit the agency or authority is established (L 1993 ch 356, §2). The amendment would not have been necessary if a public benefit corporation established for a "political subdivision", such as a housing authority, were intended to be considered an "agency" of the political subdivision.