Do members of a town conservation board have to live in the town?

Subject

Members are not officers because board is advisory; Members of Advisory Conservation Board are not public officers

Plain-English summary

The Town of Mendon had a conservation board whose entire job was to analyze environmental impact for projects the planning board referred to it and make recommendations on issues like open space and recreation planning. It had no power to issue or deny permits and no binding authority over anyone. A board member wanted to know whether the residency requirement in Public Officers Law § 3 (which says a local public officer must live in the locality) applied to her.

The Attorney General said no. Public Officers Law § 3 only applies to public officers, and the test for whether an appointee is a public officer turns on whether the position involves the exercise of sovereign power. The AG walked through the standard indicia (statutory designation as "officer," oath of office, bond, definite term, official seal) but emphasized the underlying substance: "one cannot qualify as a public officer without the authority to exercise sovereign powers of government."

Because Mendon's conservation board was purely advisory, with no discretion to decide anything, its members were not public officers. The residency requirement did not reach them.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the test for whether someone is a public officer in New York?

The AG opinion identifies several factors drawn from a line of case law going back to the early 1900s: whether the duties involve the exercise of sovereign power, whether the statute calls the position an "office," whether the appointee takes an oath of office or files a bond, whether the appointment is for a definite term, and whether the position comes with a commission or official seal. No single factor controls, but the central question is whether the position carries discretionary sovereign authority.

Was the conservation board "advisory" in name only, or was the rule about real powers?

The AG looked at what the board actually did. The board had no permitting power, no discretion to bind the town, and only made recommendations to the planning board. That substantive lack of authority drove the result. A board labeled "advisory" but with hidden binding power could come out differently.

What other boards in a town might be advisory versus official?

Town planning boards and zoning boards of appeals are not advisory; they exercise real regulatory power (planning boards approve subdivisions and site plans; zoning boards of appeals grant variances and interpret zoning rules). Boards like conservation advisory councils, parks committees, or recreation committees can be advisory if their enabling statute or local law gives them only recommendation powers.

Does this opinion mean advisory board members can't be required to file financial disclosures?

The opinion is about residency under Public Officers Law § 3, not about ethics filing requirements. New York's General Municipal Law and various local ethics codes may impose disclosure or conflict-of-interest rules on advisory board members independently. Check the specific local code.

Background and case law

The line of cases the AG cites traces back to early 20th-century New York decisions distinguishing officers from employees. Dawson v Knox (1931) drew the line at the exercise of sovereign power. Matter of MacDonald v Ordway (1916) treated statutory labeling as some indication of intent but not dispositive. Macrum v Hawkins (1933) collected the procedural indicia (oath, bond, commission, seal). The 1980s cases (Lake and County of Suffolk) confirmed that statutory creation of the position and prescription of its powers are part of the analysis.

The pattern across these cases is consistent: public officer status requires actual decision-making authority on behalf of the government. A body that can only advise does not create officer status for its members.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-4_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Page 1 of 2

Opn. No. 95-4
PUBLIC OFFICERS LAW § 3.
The members of the Town of Mendon's conservation board need not reside within the town since the
board is strictly advisory in nature.
February 2, 1995
Paul Riordan, Esq. Informal Opinion
Town Attorney No. 95-4
Town of Mendon
16 West Main Street
Honeoye Falls, NY 14472-1199
Dear Mr. Riordan:
You have asked whether a member of a town conservation board is required to reside in the town.
Under section 3 of the Public Officers Law, no person may hold a local public office who is not a
resident of the locality. The determination of your inquiry, therefore, depends upon whether the
members of the board are public officers.
A determination as to whether an appointee is an officer rather than an employee requires a review of
the powers, duties, qualifications and other characteristics of the job. The distinction between a public
office and public employment is not always clear. Matter of Dawson v Knox, 231 App Div 490, 492 (3d
Dept 1931). The duties of a public official involve some exercise of sovereign power while those of a
public employee do not. Ibid.; Matter of Haller v Carlson, 42 AD2d 829 (4th Dept 1973). The statutory
designation of a position as an office is some indication that the legislative body intended to treat its
occupant as a public officer. Cf., Matter of MacDonald v Ordway, 219 NY 328, 332 (1916); Matter of
Haller v Carlson, supra, p 830. Other indicia of a public office are the requirement to take an oath of
office or file bonds, appointment for a definite term and receipt of a commission of office or official
seal. Macrum v Hawkins, 261 NY 193, 200-201 (1933). A public office is created by statute and its
powers and duties are prescribed by statute. Matter of Lake v Binghamton Housing Authority, 130
AD2d 913, 914 (3d Dept 1987); Matter of County of Suffolk v State of New York, 138 AD2d 815, 816
(3d Dept 1988), affd., 73 NY2d 838 (1989).
Thus, while there are several indicia of status as a public officer, one cannot qualify as a public officer
without the authority to exercise sovereign powers of government. A public officer is vested with
discretion as to how he or she performs duties. A body that is purely advisory in nature would not instill
upon its members public officer status.
You concur with a letter by Ms. Himes, the member of the town conservation board who precipitated
this inquiry. She indicates that the Town of Mendon's conservation board is strictly advisory. The board
has no discretionary powers and exercises no authority over the issuance of permits. The board's
function is to analyze the environmental impact of projects referred to them by the planning board and to
make recommendations to the planning board. Also, the conservation board makes recommendations to
the planning board concerning other issues such as open space and recreation planning.
Since the town's conservation board is strictly advisory and is not empowered to make any decisions, its

http://www.oag.state.ny.us/lawyers/opinions/1995/informal/95_4.html

4/21/2006

OPINIONS OF THE ATTORNEY GENERAL

Page 2 of 2

members are not public officers and, therefore, need not reside within the town.
We conclude that the members of the Town of Mendon's conservation board need not reside within the
town since they are not public officers.
The Attorney General renders formal opinions only to officers and departments of State government.
This perforce is an informal and unofficial expression of the views of this office.
Very truly yours,
JAMES D. COLE
Assistant Attorney General
in Charge of Opinions

http://www.oag.state.ny.us/lawyers/opinions/1995/informal/95_4.html

4/21/2006