Can the Rensselaer County Attorney in New York also serve as counsel to the Troy Industrial Development Authority?

Plain-English summary

The Troy corporation counsel asked the AG whether the counsel to the Troy Industrial Development Authority (TIDA) could simultaneously serve as the Rensselaer County Attorney. The AG said yes. TIDA is an independent public benefit corporation created under Title 11 of the Public Authorities Law (Public Authorities Law § 1952). It is legally separate from both the City of Troy and the County of Rensselaer. The county attorney is the legal advisor to the county under County Law § 501, with no direct or supervisory relationship to TIDA.

Under People ex rel. Ryan v Green, two offices are incompatible if one is subordinate to the other or if there is an inherent inconsistency between the duties. Neither prong is satisfied here. The county attorney does not supervise TIDA counsel, and TIDA counsel does not answer to the county. The duties are also not inherently inconsistent: representing the county on county business and representing TIDA on TIDA business operate in different lanes. The AG noted that the TIDA Act itself expressly contemplates city legal officers serving on the authority (Public Authorities Law § 1952 allowing city council members to serve on the board without forfeiting municipal office) and authorizes the Troy City Attorney to serve as TIDA counsel (Public Authorities Law § 1953(8)), so the legislative scheme already anticipates these kinds of overlaps.

If a particular conflict arises (for example, a project that creates litigation between the county and TIDA), recusal handles it. The compatibility doctrine does not bar the combination on its own.

Currency note

This opinion was issued in 1996. 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 Troy Industrial Development Authority?
TIDA was a public benefit corporation organized under Title 11 of the Public Authorities Law to promote economic development in Troy. Its nine-member board was appointed by the Troy City Manager, and the enabling statute required several members to be members of the Troy city council. The board could appoint counsel, and the statute expressly allowed the Troy City Attorney to serve as TIDA counsel.

Why doesn't holding both positions create a subordination problem?
Because the county and TIDA are independent legal entities. The county attorney reports to the county. TIDA counsel reports to the TIDA board. There is no chain of command between the two. Neither one supervises or audits the other.

Could there ever be a specific conflict?
Yes, in theory. If the county sued TIDA (or vice versa), or if a county legislative action affected a TIDA project, the dual officeholder would need to recuse on the specific matter. The AG's compatibility holding does not preclude individual recusal. The opinion explicitly preserves that remedy.

Does the AG opinion say anything about whether the dual officeholder needs separate retainer arrangements with the two entities?
No. The opinion is silent on compensation arrangements. The Public Authorities Law § 1953(7) authorizes TIDA's board to prescribe the qualifications and compensation of its officers, employees, and agents, but that does not directly bear on the dual-officeholding question.

Does this analysis extend to other county/IDA combinations across the State?
The AG's reasoning would tend to extend to other counties paired with other IDAs that are independent public benefit corporations, but each combination should be analyzed against its own enabling legislation. Some IDAs have provisions that create governance overlap with their host counties, which could change the compatibility analysis.

Background and statutory framework

Public Authorities Law § 1952 established TIDA as a public benefit corporation. The nine-member board was appointed by the Troy City Manager, with several members required to be from the Troy city council. The statute provided that a Troy officer or employee who was appointed to the TIDA board did not forfeit municipal office or employment by virtue of the appointment, a textual signal that overlap was contemplated.

Public Authorities Law § 1953(7) authorized the TIDA board to appoint officers, employees, and agents, with the board setting their qualifications and compensation.

Public Authorities Law § 1953(8) authorized TIDA to appoint a counsel and expressly permitted the Troy City Attorney to serve in that capacity.

County Law § 501 set the county attorney's duties as legal advisor to the county government and as the official charged with prosecuting and defending civil actions involving the county.

The People v Green compatibility test (1874) supplied the analytic framework. The AG concluded that subordination was not present (different governmental units) and that inherent inconsistency was not present (different subject matter for the two roles).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-28_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Opn. No. 96-28
COUNTY LAW § 501; PUBLIC AUTHORITIES LAW §§ 1952, 1953, et seq.

The positions of Rensselaer County Attorney and counsel to the Troy Industrial Development Authority are compatible.

September 16, 1996

Patrick T. Morphy, Esq.
Corporation Counsel
City of Troy
City Hall
Troy, NY 12180

Informal Opinion No. 96-28

Dear Mr. Morphy:

You ask whether the counsel to the Troy Industrial Development Authority may serve simultaneously as the Rensselaer County Attorney.

The Troy Industrial Development Authority (TIDA) is a public benefit corporation legally separate from the municipal governments of the City of Troy and the County of Rensselaer. See, Public Authorities Law § 1952. TIDA's operations and activities are governed by the provisions of Title 11 of the Public Authorities Law.

The nine members of TIDA's governing board are appointed by the Troy City Manager. Id., § 1952. TIDA's enabling legislation requires that several of the board's members be members of the city council of the City of Troy. Id. An officer or an employee of the City of Troy who is appointed as a member of the authority does not forfeit his municipal office or employment by virtue of the appointment. Id.

TIDA's board is authorized to appoint officers, employees and agents of the authority and prescribe their qualifications and compensation. Id., § 1953(7). The Troy Industrial Development Authority Act authorizes the Authority to appoint a counsel and permits the Troy City Attorney to serve in that capacity. Id., § 1953(8).

A county attorney serves as the legal advisor to the county government. County Law § 501. The county attorney prosecutes and defends all civil actions and proceedings brought by or against the county. Id.

There are no restrictions in State law on municipal officers or employees also serving as officers or employees of the Authority. For example, the Authority's board may appoint the Troy City Attorney as its counsel. In the absence of a constitutional or statutory prohibition against dual-officeholding, one person may hold two offices simultaneously unless they are incompatible. See, People ex rel. Ryan v Green, 58 NY 295 (1874).

In our view, there is no incompatibility between the positions of Rensselaer County Attorney and counsel to TIDA. The county and TIDA are legally independent of one another. In the event a conflict should occur on a particular issue, the remedy of recusal can be utilized.

We conclude, then, that the positions of counsel to the Troy Industrial Development Authority and Rensselaer County Attorney are compatible.

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,
JOSEPH CONWAY
Assistant Attorney General