Can the NY Commissioner of Agriculture send a deputy in his place to ex officio board meetings of a public benefit corporation?

Subject

The Commissioner of Agriculture and Markets has specific statutory authority to send a deputy to ex officio meetings of the Thoroughbred Breeding Fund board

Plain-English summary

The New York State Thoroughbred Breeding and Development Fund Corporation is a public benefit corporation governed by a board of directors. By statute, the Commissioner of Agriculture and Markets sits on that board ex officio (because of his office). Counsel to the Fund's board asked whether the Commissioner could send a deputy commissioner in his place at board meetings.

The question had been to the Committee on Open Government first. The Committee had concluded that, in general, a member of a public body cannot delegate his board seat to a proxy unless there is specific statutory authority. Absent that authority, the member must be physically present to cast votes. The Committee noted that, in its experience, statutes that authorize delegation are explicit (the Committee on Open Government's own statute, for instance, expressly authorizes ex officio members to designate delegates).

The board's counsel then pointed to Agriculture and Markets Law § 17(a) and (c). The Committee asked the AG to evaluate that authority because the Committee's role is limited to Open Meetings Law interpretation.

The AG read § 17 as providing the specific authority required.

Section 17(a) is the broad delegation provision: "The commissioner may delegate any of his powers to, or direct any of his duties to be performed by, a deputy commissioner or the director of a bureau and, except where it is otherwise provided in this chapter or the context otherwise requires, may delegate any of such powers to any officer or employee of the department." Read alone, this gives the Commissioner sweeping delegation authority over departmental functions.

Section 17(c) addresses the specific ex officio situation: "Whenever by the education law or other statute the commissioner is made a member by virtue of his office of the board of visitors, managers or trustees or other similar body of a state institution, he may in writing authorize and empower a deputy commissioner, the secretary of the department or the director of a bureau to act in his place and stead at any meeting or meetings of any such board or body."

The two subsections read together create a broad and specific authorization. Subsection (a) gives general delegation power; subsection (c) specifically extends that power to ex officio board memberships at state institutions and similar bodies. The Thoroughbred Breeding Fund (a public benefit corporation under Racing, Pari-Mutuel Wagering and Breeding Law § 245.1) qualifies as a similar body for purposes of § 17(c). The Commissioner could delegate his board seat in writing to a deputy commissioner.

The opinion notes that the Commissioner had already made the written delegation, so the question was essentially confirming the practice was lawful.

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's the default rule on board-member proxies?

A board member must be physically present to cast a vote. The Open Meetings Law and standard board governance principles treat a board seat as personal to the named individual. Proxies are exceptional and require specific statutory authority.

Why does § 17(c) make a difference?

Because it provides the specific authority. The general delegation power in § 17(a) might not have been enough on its own (the question of whether it covered ex officio board membership at outside entities would be debatable). Subsection (c) removes the doubt by specifically authorizing delegation to deputies, the secretary, or bureau directors for "the board of visitors, managers or trustees or other similar body of a state institution."

Does the delegation cover voting authority?

The statute says the delegate may "act in his place and stead at any meeting." That reach includes voting, because voting is one of the main acts a board member performs at meetings. The delegate exercises the full range of authority the Commissioner would have.

Does the delegate need to be approved by the Fund board?

The opinion does not address this directly. The statute requires the Commissioner to make the delegation "in writing." It does not require board approval of the delegate. As a matter of practical board governance, the Fund board may want notice of who the standing delegate is, but that is a courtesy, not a statutory requirement.

Does this analysis apply to other commissioners' ex officio seats?

Yes, to the extent the relevant department's authorizing statute contains similar delegation language. Most state department-organic statutes have a delegation-of-powers provision, though the breadth varies. Whether ex officio board delegations are authorized depends on the specific statute, which is why counsel should always check the relevant department's authorizing language.

Statutory framework

Agriculture and Markets Law § 17(a) authorizes the Commissioner to delegate any of his powers to a deputy commissioner, bureau director, or, generally, any departmental officer or employee.

Agriculture and Markets Law § 17(c) specifically authorizes the Commissioner, when made an ex officio member of a state institution's board, to designate a deputy commissioner, the department secretary, or a bureau director to act in his place at board meetings.

Racing, Pari-Mutuel Wagering and Breeding Law § 245.1 establishes the New York State Thoroughbred Breeding and Development Fund as a body corporate and politic constituting a public benefit corporation, with the Commissioner of Agriculture and Markets as a board member by virtue of office.

The Open Meetings Law (Public Officers Law Article 7) governs the conduct of public-body meetings generally.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/95-F6_pw.pdf

Original opinion text

AGRICULTURE AND MARKETS LAW § 17(a) and (c); RACING, PARI-MUTUEL WAGERING AND BREEDING LAW § 245.1.

The Commissioner of Agriculture and Markets is authorized by statute to delegate his responsibilities on the board of directors of the New York State Thoroughbred Breeding and Development Fund Corporation to a deputy commissioner.

August 14, 1995

James F. Gill, Esq.
NYS Thoroughbred Breeding and
Development Fund Corporation
1290 Avenue of the Americas
New York, NY 10104

Formal Opinion
No. 95-F6

Dear Mr. Gill:

On behalf of the board of directors of the New York State Thoroughbred Breeding and Development Fund Corporation (Fund), you have requested an interpretation of section 17(a) and (c) of the Agriculture and Markets Law. Specifically, you ask whether those provisions authorize the Commissioner of Agriculture and Markets, who sits on the board of directors of the Fund by virtue of his office, to empower his deputy commissioner to act in his place on Fund matters.

Events preceding this opinion request are relevant. At our suggestion, an initial inquiry was made with the State Committee on Open Government (Committee). Through letter dated March 9, 1995, Counsel to Douglas Koch, DVM, a member of the board of directors of the Fund, inquired of the Committee whether the Commissioner of Agriculture and Markets may authorize a proxy to participate in meetings of the Fund and to determine whether the fund is subject to the Open Meetings Law. The Committee responded (April 11, 1995 letter to counsel to Douglas Koch, DVM), first indicating that the Fund's board of directors is a "public body" under section 102(2) of the Open Meetings Law in that it consists of more than two members conducting public business and performs a governmental function for a public corporation.

Second, while finding that there are no provisions in the Open Meetings Law or in the Fund's enabling legislation referring to the capacity of a board member to utilize a delegate or proxy, the Committee concluded that under the provisions of the Open Meetings Law a member of a public body can only cast a vote if the member is physically present at the meeting of the body. The Committee concluded its opinion, stating that absent specific statutory authority members of a board of directors, ex officio or otherwise, may not delegate their authority to serve on the board to a representative. The Committee cited as an example provisions of the Public Officers Law authorizing certain members serving on the Committee on Open Government in an ex officio capacity to designate delegates to act in their stead.

The board of directors of the Fund directed its counsel to request that the Committee reconsider its opinion in light of section 17(a) and (c) of the Agriculture and Markets Law (April 27, 1995 letter from James F. Gill to Committee). The Committee responded, through letter dated May 24, 1995, noting that its conclusions were based on the provisions of the Open Meetings Law and the enabling legislation of the Fund, and not section 17 of the Agriculture and Markets Law of which it was unaware. The Committee noted its limited authority to provide opinions and interpretations concerning the Open Meetings Law and referred the Fund to the Attorney General for an interpretation of other relevant statutes.

Returning to your inquiry, the Fund is designated as a body corporate and politic constituting a public benefit corporation. Racing, Pari-Mutuel Wagering and Breeding Law § 245(1). It is administered by a board of directors which includes "the commissioner of agriculture and markets". We concur with the Committee that there are no provisions in the Racing, Pari-Mutuel Wagering and Breeding Law or in the Open Meetings Law bearing upon the delegation of authority by a member of the Fund's board of directors to a representative or proxy. There are, however, no provisions prohibiting such a delegation. In our view, section 17(a) and (c) is sufficient statutory authority to authorize the Commissioner of Agriculture and Markets to delegate officially to a deputy commissioner the power to act in his place on the board of directors of the Fund. Those provisions provide as follows:

(a) The commissioner may delegate any of his powers to, or direct any of his duties to be performed by, a deputy commissioner or the director of a bureau and, except where it is otherwise provided in this chapter or the context otherwise requires, may delegate any of such powers to any officer or employee of the department.

. . .

(c) Whenever by the education law or other statute the commissioner is made a member by virtue of his office of the board of visitors, managers or trustees or other similar body of a state institution, he may in writing authorize and empower a deputy commissioner, the secretary of the department or the director of a bureau to act in his place and stead at any meeting or meetings of any such board or body.

Subdivision a authorizes the Commissioner to delegate any of his powers to a deputy commissioner. Subdivision c authorizes the Commissioner, when he is made an ex officio member of a body, in writing to authorize and empower a deputy commissioner to act in his place and stead at meetings of the body. Read together, these provisions constitute a broad authorization for the Commissioner to delegate his powers. This authorization includes a delegation by the Commissioner of his responsibilities as a member of the board of directors of the Fund.

You have indicated that the Commissioner in writing has delegated his authority to participate on the Fund's board of directors to a deputy commissioner.

We conclude that the Commissioner of Agriculture and Markets is authorized by statute to delegate his responsibilities on the board of directors of the New York State Thoroughbred Breeding and Development Fund Corporation to a deputy commissioner.

Very truly yours,

DENNIS C. VACCO
Attorney General