Can a town planning board member do paid soil-boring work that ends up in subdivision maps the board reviews?

Subject

Town planning board member and subcontractor for applicant

Plain-English summary

The Town of Southold had a planning board member who worked privately as a geologist. He performed soil borings at about $100 each, typically hired by engineers, architects, surveyors, or sometimes directly by developers. The boring data was used in subdivision maps and site plans, many of which would ultimately come before the planning board for review under SEQRA or for siting approvals.

The town attorney asked whether the planning board member faced a conflict of interest and whether recusal was the cure.

The AG concluded the situation was worse than a discretionary conflict: General Municipal Law § 805-a(1)(c) flatly prohibits a municipal officer or employee from receiving (or agreeing to receive) compensation for services rendered in relation to any matter before the agency on which they serve. The statute's whole point is to keep municipal officers from privately preparing materials that they will then officially review. Recusal does not cure a § 805-a violation, because the violation is the acceptance of compensation itself, not the participation in the agency vote.

The AG flagged the broad reach. The member did not have to be hired by the developer directly; if he prepared data that ended up in materials before the planning board, the statutory line was crossed. The $100 fee level did not save it. And the town's silence on the issue in its local ethics code did not help, because § 805-a is a state statute that applies regardless of local code.

The opinion concludes that the member may not receive or agree to receive compensation for preparing borings whose data would be incorporated into maps or plans presented to the planning board. It does not prescribe an employment or resignation decision.

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

Why isn't recusal enough for this kind of conflict?

Because § 805-a is structured as a prohibition on accepting compensation, not as a rule about voting. Recusal cures the voting problem but leaves the compensation problem standing. The AG draws a sharp line: when a statute prohibits the underlying compensation, recusal is irrelevant.

What if the planning board member didn't know the project would come before the board?

The opinion does not address the member's knowledge or a project that only might come before the board. It addresses compensated borings whose data would be incorporated into subdivision maps and site plans presented to the board.

What's the difference between this and § 805-a(1)(a), the gift rule?

The opinion analyzes only § 805-a(1)(c), which prohibits receiving or agreeing to receive compensation for services related to a matter before the member's agency. It does not compare that provision with the gift rule.

What about the developer hiring the geologist directly?

Same outcome. The AG opinion treats the route to the work as irrelevant: whether the developer hires the member directly, or an engineer subcontracts to him, or the architect routes the data through, the prohibition applies if the data ends up in a matter before the planning board.

Can the geologist work on projects in other towns?

The opinion addresses borings whose results are incorporated into materials presented to this town planning board. It does not decide whether a separate project in another town would raise another legal issue.

Statutory framework

General Municipal Law § 805-a is the conflict-of-interest statute for local government officers and employees. Subsection (1)(c) provides:

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.

The AG concludes that the statutory prohibition does not allow recusal as an appropriate remedy. It does not analyze a separate common-law test.

The town attorney said the local ethics code was silent on this subject. The AG nevertheless applied § 805-a(1)(c) to the described compensated work.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-14_pw.pdf

Original opinion text

GENERAL MUNICIPAL LAW § 805-A(1)(c).
A member of a town planning board may not be compensated or enter into an agreement to be compensated for the preparation of test borings, date from which would be incorporated into subdivision maps and site plans to be presented to the planning board for review. The statutory prohibition does not allow recusal as an appropriate remedy. March 1, 1995

Laury L. Dowd, Esq.
Town Attorney
Town of Southold
P. O. Box 1179
Southold, NY 11971

Informal Opinion
No. 95-14

Dear Ms. Dowd:
You have asked whether a member of the town planning board who also is a geologist in the private sector has conflicts of interests under specified circumstances. You have indicated that the member performs soil borings throughout the area, primarily in response to requests from engineers, architects and surveyors. On occasion, this geologist is hired directly by the developer. The average fee for a boring is $100. The boring provides data concerning the depth of water and the nature of soil and materials encountered. This data is placed on subdivision maps and site plans, many of which are ultimately reviewed by the town planning board in the course of evaluating the SEQRA aspects of the project or in siting project facilities. You inquire whether it is a conflict of interests for this individual to sit on the planning board in review of a subdivision map or site plan containing data derived from borings he prepared in his private capacity as a geologist. Is it necessary for this planning board member to recuse himself concerning these applications? You indicate that the town's ethics code is silent regarding this subject. State law 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 before any municipal agency of which he is an officer, member of employee. General Municipal Law § 805-a(1)(c). In rendering compensated

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services to do test borings, the results of which are incorporated into subdivision maps and site plans presented to the planning board for review and approval, we believe the subject planning board member would be in violation of the above provision. The obvious purpose of section 805-a(1)(c) is to prevent the conflict of interests that would result if a municipal officer was placed in the position of reviewing an application presented by him, or which he prepared in whole or in part. We conclude that a member of a town planning board may not be compensated or enter into an agreement to be compensated for the preparation of test borings, date from which would be incorporated into subdivision maps and site plans to be presented to the planning board for review. The statutory prohibition does not allow recusal as an appropriate remedy. 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