Opinion 97 - 25

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 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

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]).

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[1][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 applicant.

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).