In New York, can a county legislator also serve on the town planning board of a town inside the county?

Plain-English summary

The Town of Pamelia's attorney asked whether one person could serve simultaneously as a county legislator and as a member of a town planning board in the county. The AG concluded the answer is yes, with a recusal caveat.

The compatibility analysis comes from People ex rel. Ryan v Green. Two offices are incompatible if one is subordinate to the other or if their duties are inherently inconsistent. A county legislator passes county-level local laws and develops county policy. A town planning board develops the town's master plan, approves site plans, and approves subdivision plans under Town Law §§ 272-a, 274-a, and 276. The county legislature has no direct role over the town's zoning and land-use regulation, so the two roles' duties do not conflict. The AG also pointed to County Law § 411, which contains no prohibition on the combination.

The caveat involves the regional review system in General Municipal Law § 239-b and § 239-m. Section 239-b lets a county legislative body participate in establishing and structuring county, metropolitan, or regional planning boards and may include authority to appoint members. Section 239-m then provides that certain actions of local agencies (including town planning boards) within the county or region are subject to review by the county/metropolitan/regional planning board. If the regional body recommends modification or disapproval, the local body can only act contrary to that recommendation by a supermajority vote.

The mechanics produce a potential conflict if the county legislator votes on appointments to the regional planning board. That regional planning board would later review the town planning board's decisions, on which the same legislator serves. The AG recommended recusal from those appointment votes to preserve the integrity of government and avoid the appearance of a conflict of interest. This mirrors the recusal rule in § 239-m for local-board members who also serve on regional boards.

Currency note

This opinion was issued in 1997. 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 § 239-m review in practical terms?

When certain land-use proposals come before a town planning board (often projects within a defined distance from a county or state road or other listed feature), the proposal is referred to the county or regional planning board for review. The regional board issues a recommendation. If the recommendation is for modification or disapproval, the town planning board can override it only by a supermajority vote. This is a key referral and review mechanism for cross-jurisdictional land-use coordination.

Why is recusal needed only for appointments, not for actual case decisions?

The AG draws the line at the structural relationship the legislator creates by voting on regional planning board members. Voting on the merits of any particular land-use case is the planning board's job, separate from county-legislator duties. The appointment process is where the county legislator's two roles intersect most directly with each other's leverage.

Could the legislator just decline to sit on the regional board if appointed?

The opinion does not address that scenario. The concern is upstream: the legislator's vote in selecting regional board members who later review the legislator's own town board decisions. Recusal from the appointment process addresses that upstream concern. The legislator can serve normally on both bodies otherwise.

What about other state-law conflict-of-interest provisions?

General Municipal Law Articles 18 governs municipal ethics generally, including codes of ethics that towns and counties enact under General Municipal Law § 806. The opinion did not analyze that framework, but actual conflicts of interest in particular votes should be analyzed under local codes of ethics and broader state law.

Does the recusal recommendation come from § 239-m itself?

§ 239-m has a specific provision noting that a member of a municipal board may serve on a regional planning board, but must recuse from any vote of the regional board on a proposal of the municipal board where they also serve. The AG analogized that statutory recusal rule to the appointment scenario to maintain consistent policy.

Background and statutory framework

People ex rel. Ryan v Green, 58 NY 295 (1874), is New York's compatibility-of-office test. Offices are incompatible if one is subordinate to the other or if their duties are inherently inconsistent.

County Law § 411 governs county legislators. There is no general statutory prohibition on holding county legislator simultaneously with a town office.

Town Law § 272-a (comprehensive plans), § 274-a (site plan review), and § 276 (subdivision approval) define the town planning board's authority over land use within the town.

General Municipal Law § 239-b authorizes county legislative bodies to participate in establishing and structuring county, metropolitan, or regional planning boards, including appointments. § 239-m requires referral of certain local land-use actions to the county or regional planning board for review and recommendation, with supermajority override.

Citations

• County Law § 411 (county legislators).
• General Municipal Law § 239-b (regional planning board structure and appointments); § 239-m (referral and review of local land-use actions; recusal of local board members serving on regional boards).
• Town Law § 272-a (comprehensive plan); § 274-a (site plan review); § 276 (subdivision approval).
• People ex rel. Ryan v Green, 58 NY 295 (1874) (compatibility-of-office test).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-22_pw.pdf

Original opinion text

COUNTY LAW § 411; GENERAL MUNICIPAL LAW §§ 239-b, 239-m; TOWN LAW
§§ 272-a, 274-a, 276.
The positions of county legislator and member of a town planning board of a town in the county are compatible. April 29, 1997 Paul J. Dierdorf, Esq. Town Attorney Town of Pamelia 10 Academy Street Watertown, New York 13601

Informal Opinion
No. 97-22

Dear Mr. Dierdorf:
You have asked whether a person may serve simultaneously as county legislator and as a member of a town planning board of a town located in that county. 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 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. We are unaware of any statutory prohibition on serving simultaneously as county legislator and as member of a town planning board. See, County Law § 411. A county legislator is a member of the legislative body of the county, which is responsible for the passage of local legislation and the development of policy on behalf of the county.

2
The town planning board has responsibility for the development of the master plan which forms the basis for development in the town. Town Law § 272-a. Additionally, the planning board may be given the responsibility to approve site plans and subdivision plans. Id. §§ 274-a, 276. Generally, the town planning board plays an integral role in the application of land use planning and zoning regulations of the town. In our view, the position of county legislator is compatible with membership on a town planning board. The county legislature has no direct role regarding a town's zoning and land use planning regulations and, therefore, we see no disqualifying conflict of duties between the two positions. We note, however, that under section 239-b of the General Municipal Law, a county legislative body has broad authority to participate in establishing and structuring county, metropolitan or regional planning boards. Under that provision, a county legislative body may be given authority to make appointments to a county, metropolitan or regional planning board. Under section 239-m of the General Municipal Law, certain actions taken by agencies, including town planning boards, of localities within the county, metropolitan or regional area are subject to review by county, metropolitan or regional planning boards, and if that body recommends modification or disapproval of a proposed action, the referring body may not act contrary to that recommendation except by a super-majority vote. General Municipal Law § 239-m. We note that while a member of any municipal board, bureau, commission or legislative body may serve as a member of a county, metropolitan or regional planning board, such member must recuse him or herself from any vote as a member of that board if the subject of the vote is a proposal, application or vote of the municipal board of which he or she is also a member. Id. In our view, while the two positions are compatible, a member of a county legislative body, which is authorized to appoint members to a county, metropolitan or regional planning board, and who also serves as a member of a town planning board, should recuse himself or herself from the appointment process. This will ensure that the county legislator will not vote for or against any member of the county, metropolitan or regional planning board who could then review the decisions of the town planning board of which the county legislator is a member. This preserves the integrity of government by avoiding any appearance of a conflict of interests. Recusal from the appointment process is also consistent with the legislative policy noted above regarding persons who are members of both local agencies and county, regional or metropolitan planning boards.

3
We conclude that the positions of county legislator and member of a town planning board of a town in the county 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,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions