Can a NY county legislator also serve on the county health department's review committees and as the farm bureau representative to the soil and water conservation district?

Subject

County legislator and three other roles: compatibility analysis

Plain-English summary

Tioga County's county attorney was advising an individual interested in running for county legislator. The individual already served the county in several capacities: on the Utilization Review Committee, on the Professional Advisory Committee, and as the farm bureau representative on the board of directors of the county soil and water conservation district. The question was whether he could keep those positions while serving on the legislature.

The AG concluded no, on each.

On the Utilization Review and Professional Advisory Committees:

These committees are composed of professional personnel under 10 NYCRR § 763.11(13) (one or more physicians, registered professional nurses, members of the professional therapeutic services provided by the agency). The Utilization Review Committee periodically reviews staff to ensure care is appropriate. The Professional Advisory Committee sets standards and policies for the professional staff and assesses adequacy and appropriateness of services. Both committees report their findings to a committee of the county legislature, which then reports to the legislature as a whole.

The AG saw a structural incompatibility. The state regulations envision two completely separate functions: professional evaluation by the committees, then policy determination by the legislature. A person who is both a committee member and a legislator collapses the two functions into one person. The regulations contemplate the professional committees' findings being passed to a separate body (the legislature) for action. A legislator who is also a committee member cannot be the receiver of his own findings.

On the soil and water conservation district board:

Soil and Water Conservation Districts Law § 6(1) prescribes the board's composition: five members appointed by the county legislature. Two of the members are county legislators. The other three are "persons not members of the county board of supervisors [or county legislature] two of whom shall be practical farmers." One farmer is appointed from a list submitted by the county grange; the other from a list submitted by the county farm bureau. The fifth represents non-farm landowners.

By the statute's own structure, the farm bureau representative must be a non-legislator. Once the individual is elected to the legislature, he is no longer eligible to be the farm bureau representative. He could become a member of the board only as one of the two legislator seats, not as the farm bureau seat. The AG noted the same result would follow even if the board were expanded to seven members (1986 Op Atty Gen 36).

The AG also noted (without elaboration) that the AG had previously declined to answer one of the questions in the inquiry; the New York State Department of Audit and Control had addressed it.

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 the review committees?

Because the structural design separates professional review from political decision-making. The Utilization and Professional Advisory Committees do the technical work; the legislature does the policy work. Recusal protects against case-by-case conflicts but not against the conflation of roles that defeats the regulatory design. A legislator-committee-member has already mixed the functions just by holding both positions.

Could the individual stay on the committees if he was on a legislative committee that does not handle health?

The opinion does not parse that hypothetical. The AG framed the incompatibility in terms of the structure of the regulations and the legislature, not the individual's specific committee assignments. The mixing of professional-evaluator and legislator roles is the problem regardless of which legislative committee the individual sits on.

Why doesn't this analysis apply to the two legislator seats on the soil and water board?

Because the statute affirmatively creates two seats for legislators. The Legislature decided that some legislator representation is appropriate. What the statute does not permit is filling the farmer or non-farm-landowner seats with legislators. The composition is prescriptive.

Could the individual switch from the farm bureau seat to a legislator seat?

If the county legislature wants to appoint him to one of the two legislator seats on the soil and water board, yes. But that is a different appointment, and one of those seats has to be open or made available.

What about the grange representative seat? Could a legislator hold that?

No, by the same statutory logic. The statute says the three non-legislator seats are "persons not members of the county board of supervisors or county legislature." The grange representative is one of those seats. Legislators are excluded from all three.

Statutory and regulatory framework

Soil and Water Conservation Districts Law § 6(1) prescribes the composition of the district board: five members, two of whom are county legislators, two of whom are practical farmers (one from a grange list and one from a farm bureau list), and one of whom represents non-farm landowners.

10 NYCRR § 763.11(13) governs the composition of the Utilization Review Committee and Professional Advisory Committee, requiring professional personnel.

The Ryan v Green common-law test for compatibility applies in absence of a statutory prohibition.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-41_pw.pdf

Original opinion text

SOIL AND WATER CONSERVATION DISTRICTS LAW § 6(1). Membership on the county legislature is incompatible with simultaneous service on the Professional Advisory Committee or the Utilization Review Committee. Also, once elected to the legislature, this individual may not continue to serve as the farm bureau representative on the board of the soil and water conservation district. July 31, 1995

Thomas R. Emnett, Esq.
County Attorney
County of Tioga
County Office Building
55 Main Street
Owego, NY 13827

Informal Opinion
No. 95-41

Dear Mr. Emnett:
You have indicated that you have been contacted by an individual expressing an interest in running for county legislator who currently serves the county in several other capacities. First, you have asked whether service as a legislator while also serving as a member of the Utilization Review and the Professional Advisory Committees, respectively, are incompatible. In the absence of a constitutional or statutory prohibition against dual-officeholding, one person may hold two offices simultaneously unless they are incompatible. The leading case on compatibility of office is People ex rel. Ryan v Green, 58 NY 295 (1874). In that case the Court held that two offices are incompatible if one is subordinate to the other or if there is an inherent inconsistency between the two offices. The former can be characterized as "you cannot be your own boss", a status readily identifiable. The latter is not easily characterized, for one must analyze the duties of the two offices to ascertain whether there is an inconsistency. An obvious example is the inconsistency of holding both the office of auditor and the office of director of finance. There are two subsidiary aspects of compatibility. One is that, although the common law rule of the Ryan case is limited to public offices, the principle equally covers an office and a position of employment or two positions of employment. The other is that, although the positions are compatible, a situation may

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arise where one has a conflict of interests created by the simultaneous holding of the two positions. In such a situation, the conflict is avoided by declining to participate in the disposition of the matter. You have stated that the Utilization Review Committee periodically reviews the staff of the county health department to ensure that the care being provided is appropriate. The Professional Advisory Committee sets standards, policies and procedures applicable to the professional staff of the county health department. The Committee makes recommendations as to the adequacy and appropriateness of services based on an assessment of community need. In the case of both committees, revisions in the provision of health care are recommended to a committee of the county legislature which then reports to the legislature as a whole. It is then the county legislature's responsibility to evaluate the recommendations made and take necessary action. For example, the Utilization Review Committee might note deficiencies in the direct provision of health care, requiring basic policy determinations by the county legislature. The Professional Advisory Committee might make recommendations regarding the adequacy of staff, either proposing the addition or deletion of positions. Decisions in these areas can only be made by the legislative body. The composition of these committees, now with the same members serving both, is controlled by State regulations. 10 NYCRR § 763.11(13). These membership provisions call for the appointment of a group of professional personnel, including one or more physicians, registered professional nurses, and members of the professional therapeutic services provided by the agency. Id. In our view, it is incompatible to serve as a county legislator while also serving as a member of either committee. We recognize that it is not uncommon for a legislative body, such as a county, to form committees fully or partially comprised of legislators in order to evaluate programs and acquire information, followed by a report to the entire legislature. In this case, however, State regulations envision separate committees composed of professional personnel that would perform an evaluation and then report to the legislative body. In our view, the regulations contemplate two completely separate functions -- one involving professional evaluation and the other a determination of policy by the legislature. Thus, a member of

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the county legislature, possessing the necessary qualifications, may not serve on either of the two committees. You also have indicated that this individual serves as the Farm Bureau representative on the board of directors of the county soil and water conservation district. You ask whether membership on the county legislature would be incompatible with service on this board. In our view, there is statutory incompatibility between these two positions. The board of directors of a county soil and water conservation district consists of five members appointed by the county legislature. Two members are county legislators while the remainder are "three persons not members of the county board of supervisors [or county legislature] two of whom shall be practical farmers". Soil and Water Conservation Districts Law
§ 6(1). One farmer is to be appointed from a list submitted by the county grange while the other is to be appointed from a list submitted by the county farm bureau. You have indicated that the individual in question represents the county farm bureau. The fifth member is to be appointed from the county at large, representing non-farm land ownership interests. It seems clear under this provision that once this individual becomes a member of the county legislature, he will be ineligible to serve as the representative of the county farm bureau. He could become a member of the board of the district only as a representative of the county legislature. We note that in the event the board of directors of the district is increased to seven members, the same result would be reached. 1986 Op Atty Gen 36. We note that your first question was answered by the New York State Department of Audit and Control. We conclude that membership on the county legislature is incompatible with simultaneous service on the Professional Advisory Committee or the Utilization Review Committee. Also, once elected to the legislature, this individual may not continue to serve as the farm bureau representative on the board of the soil and water conservation district. 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,

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JAMES D. COLE
Assistant Attorney General
in Charge of Opinions