Opinion 97 - 25
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The opinion may no longer represent those views if, among other things, there have been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
CONFLICTS OF INTEREST -- Codes of Ethics (requirement that architectural review board
members represent that they will not perform compensated services for applicants to the
board until after the board approves the applications)
PUBLIC OFFICERS AND EMPLOYEES -- Ethics
(performance of services by board member for applicant to the board)
GENERAL MUNICIPAL LAW, §§805-a(1)(c), 806(1)(a): A code of ethics may require a member
of a municipal agency to represent that he or she will not agree to perform compensated
services for an applicant to the agency until after the agency approves the application.
This is in reply to your request for our opinion concerning a proposed amendment to your
town's code of ethics prompted by certain actions on the part of a member of the town's
architectural review board.
You state that the board member in question is a sign maker who has been found to have
drawn sketches of signs for applicants to annex to their applications to the architectural
review board. You also state that the board member does not participate in the discussion
or vote on such applications, but after the board approves the applications, the board
member constructs and installs the signs for the clients under the approved application.
We understand that the board member is not compensated for the sketches, but is
compensated for the construction and installation of the signs. Under these circumstances,
you ask whether the town's code of ethics may be amended to require existing board members
to sign an affidavit representing that they will not perform compensated services for an
applicant to their board until after an approval has been issued by the board.
The statutes relating to conflicts of interest of municipal officers and employees are
contained in article 18 of the General Municipal Law (§800 et seq.).
Section 805-a(1)(c) of the General Municipal Law provides that no municipal officer or
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
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).
Thus, section 805-a(1)(c) prohibits a member of a municipal agency, such as a town
architectural review board, from agreeing, either expressly or by implication, to receive
compensation for services in relation to any matter before the municipal agency for which
he or she serves (see 1990 Opns St Comp No. 90-28, p 65). Moreover, section 805-a(1)(c)
prohibits a member of a municipal agency from entering into an agreement for compensation
for services rendered with respect to matters which must be reviewed, passed upon, or
otherwise brought to the attention of the agency, even if the services are rendered before
the matter is formally submitted to the agency (id.). Section 805-a(1)(c), however,
does not prohibit the performance of uncompensated services (id.). Whether
services are performed for compensation is a question of fact which should be determined,
in the first instance, at the local level (see, e.g., General Municipal Law, §808,
pertaining to local boards of ethics).
Section 806(1)(a) of the General Municipal Law, requires the governing body of each
county, city, town, village and school district to adopt a code of ethics setting forth
for the guidance of its officers and employees the standards of conduct reasonably
expected of them. Among other things, a code of ethics must contain standards of conduct
with respect to private employment in conflict with official duties (id.). A code
of ethics may also regulate or prescribe conduct which is not expressly prohibited by
article 18, and provide for the prohibition of conduct (id.). A code of ethics,
however, may not be inconsistent with the provisions of article 18 (1992 Opns St Comp No.
92-30, p. 78; 1980 Opns St Comp No. 80-234, unreported; 1971 Opns St Comp No. 71-417,
unreported; Belle v Town Board of the Town of Onondaga, 61 AD2d 352, 402
NYS2d 677). In this regard, a code of ethics may not authorize conduct otherwise
prohibited by article 18 (General Municipal Law, §806[a]), nor may it prohibit conduct
expressly permitted by article 18 (1992 Opns St Comp No. 92-30, supra).
A code of ethics, therefore, may not permit a member of a municipal agency to enter into
an agreement for the performance of compensated services in relation to any matter which
must be brought before the agency, or is pending before the agency, in violation of
section 805-a(1)(c). A code of ethics, however, may require a member of a municipal agency
to represent that he or she will not agree to perform compensated services for an
applicant to the agency until after the agency approves the application. In the absence of
any restrictions in section 806, it is our opinion that such a reporting requirement could
be imposed on incumbent appointive officers (cf. Board of Education v PERB,
75 NY2d 660, 555 NYS2d 659, relating to the collective bargaining requirements applicable
to the imposition of financial disclosure requirements).
We also note, however, that requiring a member of a municipal agency to represent that he
or she will not agree to perform compensated services for an applicant to the agency until
after the agency approves the application implies that the agency member is free to
perform uncompensated services for an applicant prior to final action by the agency,
followed by the performance of compensated services after such action. In our view, the
sequence of uncompensated and compensated services may give rise to at least the
appearance of an express or implied agreement for compensated services entered into prior
to final action by the agency in violation of section 805-a(1)(c).
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 or a municipality's code of ethics, violate the spirit and intent
of these enactments, 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). For example, in Matter of Tuxedo Conservation and
Taxpayers Ass'n, supra, the court invalidated a town board's approval of a land
use application because of the possibility that a board member's vote was influenced by
the likelihood of his firm receiving a contract from a wholly-owned subsidiary of the
Thus, to avoid a similar appearance of impropriety, in lieu of the proposed affidavit
requirement, the town should consider amending its code of ethics to supplement the
provisions of section 805-a(1)(c) by prohibiting a member of a municipal agency from
performing compensated services in relation to a matter previously before the agency.
Additionally, to avoid an appearance of partiality on the part of the agency, the town may
wish to consider an amendment which would restrict or prohibit a member of a municipal
agency from performing uncompensated services in relation to any matter which must be
brought before the agency. Even in the absence of any such amendment, however, it is our
opinion that a member of a town's architectural review board should refrain from
sketching, constructing and installing signs for applicants to the board(1).
January 12, 1998
John C. Jilnicki, Esq., Deputy Town Attorney
Town of East Hampton
1. Should the board member
continue to sketch signs for applicants and continue to not participate in the discussion
or vote on their applications, we note that Attorney General's Office has concluded that
if an individual's work in the private sector necessitates numerous recusals from his or
her official duties, it would be unwise for the individual to continue to serve on the
board (see, e.g., 1989 Opn Atty Gen [Inf] No. 89-35, p 1067).