Opinion 97 - 12

CONFLICTS OF INTEREST -- Employment Contracts (planning board secretary as employee of engineer who appears before the board) -- Engineering Services (planning board secretary as employee of engineer who appears before the board)

GENERAL MUNICIPAL LAW, §§801, 805-a: An arrangement whereby the recording secretary of the town planning board is employed by a consulting engineer who regularly represents developers in matters before the planning board would not appear to raise questions as to potential prohibited interests in town contracts. The secretary, however, would be prohibited from performing services for the engineering firm in relation to any matter before, or to come before, the planning board. In addition, he or she would be prohibited from disclosing any confidential information acquired in the course of his or her duties as secretary to the planning board, or using any such information to further personal interests.

You ask whether the recording secretary of a town planning board may be employed by a local consulting engineer who regularly represents developers in matters before the planning board.

General Municipal Law, article 18 (§800 et seq.) contains provisions of law relative to "interests" in municipal "contracts" (see General Municipal Law, §§800-805). For this purpose, a "contract" includes any express or implied claim, account or demand against or agreement with a municipality (see General Municipal Law, §800[2]). A municipal officer or employee has an interest in a contract of his or her municipality if a direct or indirect pecuniary or material benefit accrues to the officer or employee as a result of the contract (General Municipal Law, §800[3]). In addition, an officer or employee is deemed to have an interest in contracts of, inter alia, a firm, partnership, association or corporation of which the officer or employee is an employee (General Municipal Law, §800[3][b],[c]). An interest in a contract 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 authorize or approve payments thereunder: (b) audit bills or claims under the contract; or (c) appoint an officer or employee who has any such duties (General Municipal Law, §801), and if none of the exceptions contained in article 18 are applicable (see General Municipal Law, §802).

In addition to prohibiting certain interests in contracts, article 18 also contains certain other restrictions. 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 which must come before any agency of the municipality of which he or she is an officer, member or employee, over which he or she has jurisdiction, or to which he or she has appointment power (see 1990 Opns St Comp No. 90-28, p 65). Further, General Municipal Law, §805-a(1)(b) 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.

Applying the provisions of article 18 here, we note that, although there is some case law to the contrary (People v Pinto, 88 Misc 2d 303, 387 NYS2d 385), it has been the opinion of this Office that an application to a planning board is not a contract for article 18 purposes (e.g. 1991 Opns St Comp No. 91-48, p 132). Therefore, the proposed arrangement would not appear to raise questions as to potential prohibited interests in town contracts. The secretary, however, would be prohibited by section 805-a(1)(c) from performing services for the engineering firm in relation to any matter before, or to come before, the planning board. In addition, he or she would be prohibited from disclosing any confidential information acquired in the course of his or her duties as secretary to the planning board, or using any such information to further personal interests (General Municipal Law, §805-a[1][b]).

Even if there would be no violation of section 805-a as a result of the secretary's employment by the engineer, the town's code of ethics should be consulted. Among other things, the code must provide standards for town officers and employees with respect to private employment in conflict with officials duties (General Municipal Law, §806[1]).

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, assuming neither section 805-a nor the town's code of ethics would be violated by the proposed employment arrangement, we believe the secretary, nonetheless, should publicly disclose his or her relationship with the engineering firm each time the firm appears before the planning board.

May 22, 1997
Joseph A. Reinschmidt, Executive Secretary
Town of Parma, Planning Board