Opinion 98 - 5

CONFLICTS OF INTEREST -- Interest in Contract (county coroner paid by county for burial of public assistance recipients)

COUNTY CORONER -- Conflicts of Interest (payment by county for burial of public assistance recipients)

GENERAL MUNICIPAL LAW, §§800[2], [3], 801, 802, 803, 806: An elective county coroner, who is also a funeral director, generally, would not have a prohibited interest in a contract if he or she submitted a bill to the county department of social services for payment of the costs of burying a deceased public assistance recipient. 10 Opns St Comp 1954, p 217 superseded to the extent inconsistent with this opinion.

You ask whether an elective county coroner, who is also a funeral director, would have a prohibited interest in a contract if he or she submitted a bill to the county department of social services for payment of the costs of burying a deceased public assistance recipient.

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, including county officers and employees (General Municipal Law, §800[4], [5]). Pursuant to section 800(3) of the General Municipal Law, 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. In addition, a municipal officer or employee is deemed to have an "interest" in the contracts of a firm, partnership or association of which he or she is a member or employee, and in the contracts of a corporation of which he or she is an officer, director, employee or stockholder (General Municipal Law, §800[3][b]-[d]). For this purpose, a "contract" includes any express or implied claim, account, or demand against or agreement with a municipality (General Municipal Law, §800[2]).

Unless a statutory exception applies (see General Municipal Law, §802), section 801 of the General Municipal Law would prohibit the interest 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. When an interest is not prohibited, section 803 generally requires written public disclosure of the nature and extent of actual or prospective interests in contracts, to be made to the governing board of the municipality for inclusion in the official record of the board's proceedings.

Based on the foregoing, the submission of a voucher to a county social services department for payment of the costs of burying a deceased public assistance recipient would constitute a "contract" because the voucher is a claim, account or demand against the county (see 1985 Opns St Comp No. 85-4, p 4). A coroner would have an "interest" in that contract if payment is made to the coroner as a sole proprietor of a funeral business. A coroner also would be deemed to have an "interest" in that contract if the voucher is submitted by a partnership of which the coroner is a member, or by a corporation of which the coroner is a stockholder.

Normally, a coroner would not possess any of the powers or duties set forth in section 801 with respect to contracts for the burial of a public assistance recipient (see General Municipal Law, §801; 1979 Opns St Comp No. 79-927, unreported; see also County Law, §§369, 577[b], 600, 671; Social Services Law, §141). In such cases, a coroner would not have a prohibited interest in a contract for the burial of a public assistance recipient, but would be required to disclose his or her interest in the contract in accordance with section 803 of the General Municipal Law⁽¹⁾.

The county, however, should review its code of ethics to ascertain whether it contains any pertinent provisions. 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 (General Municipal Law, §806[1]). 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). Therefore, if the county's code of ethics does not address this type of situation, the county may wish to consider amending the code to limit the circumstances under which a coroner may perform burials of public assistance recipients.

Moreover, 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). Thus, even if article 18 and the county's code of ethics are not violated, when burial arrangements for public assistance recipients are made by the county (see Social Services Law, §141[1][b], [2], [3]), the county should take steps to ensure that selection of a coroner who is a funeral director to perform the burials does not give rise to an appearance of partiality. Compliance with competitive bidding requirements or, when competitive bidding is not required, with a request for proposals or quotation process in accordance with the county's procurement policies and procedures (see General Municipal Law, §§103, 104-b) can help ensure that contracts for burial services are awarded in the best interests of the county.

Finally, in 10 Opns St Comp 1954, p 217, we also considered whether a county coroner who is a funeral director would have a prohibited interest in a bill submitted to the county for the costs of burying a public assistance recipient. Since 10 Opns St Comp 1954, supra, pre-dates the enactment of article 18, it is hereby superseded to the extent inconsistent with this opinion.

February 9, 1998
Dennis V. Tobolski, Esq., County Attorney
County of Cattaraugus

1. We note that should a coroner have any of the powers or duties set forth in section 801 with respect to contracts for the burial of a public assistance recipient, his or her interest in the contract would be prohibited unless one of the exceptions set forth in article 18 is applicable to the contract (see General Municipal Law, §802). If one or more of these exceptions is applicable, the coroner's interest in the contract would not be prohibited, but the coroner may be required to disclose his or her interest in the contract pursuant to section 803 of the General Municipal Law (see General Municipal Law, §803[2]). Whether the coroner in this instance has any section 801 powers or duties, and whether any of the exceptions in article 18 are applicable, are questions of fact to be determined in the first instance at the local level.