Can a New York town attorney's law firm represent the town board's interests in a zoning matter pending before the town's own zoning board of appeals?

Plain-English summary

A law firm was retained by the Town of Blooming Grove to provide legal services to the town board and other town agencies, including the zoning board of appeals. An applicant before the ZBA argued that the firm's effort to provide input on behalf of the town board (a related but separate municipal client) was a forbidden conflict under General Municipal Law § 805-a(1)(c), which prohibits a municipal officer or employee from receiving compensation for services relating to a matter before an agency the person serves or controls.

The AG rejected the argument and clarified two things.

First, § 805-a(1)(c) targets the lawyer-as-private-litigant scenario. Its purpose is to prevent a municipal officer or employee from taking pay to represent a private client in front of the agency he sits on or supervises. That risk is not present when the same lawyer represents the town board itself (a public client) in a matter before the ZBA. The AG says the town board has a right to provide input to the ZBA and that its municipal attorney represents it. The opinion distinguishes Op Atty Gen (Inf) No. 93-36: § 805-a(1)(c) does not expressly cover an independent contractor serving as board attorney, but compensated private-client representation before that board violates common-law conflict standards.

Second, the lawyer cannot wear two hats in the same proceeding. The AG said the firm could not also represent the ZBA in the same proceeding. To solve that, the AG invoked Cahn v Town of Huntington, 29 NY2d 451 (1972), which recognized that a municipal agency has implied authority to employ counsel when the regular municipal attorney is unable or unwilling to act, or is disqualified. Even without an express statutory grant, the ZBA can employ separate counsel for this matter. The opinion does not address payment.

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 does GML § 805-a(1)(c) actually prohibit?

It bars a municipal officer or employee from receiving compensation for services rendered to a private client in a matter before a municipal agency where the officer is a member, employee, or has appointment authority. The AG described the provision’s purpose as preventing compensated private-client advocacy before an agency the municipal officer or employee serves.

Why doesn't the bar reach a town attorney advocating for the town board?

Because the town board is not a private client. The AG says the town board has a right to provide input to the ZBA and that representation of the board is in the public interest. It therefore falls outside the purpose of the private-client prohibition and creates no common-law conflict in this setting.

Could the same law firm also represent the ZBA in this case?

No. The AG expressly says the firm cannot also represent the ZBA in the same administrative proceeding. Cahn v Town of Huntington supplies the implied authority for the ZBA to hire independent counsel when the regular municipal counsel is disqualified.

Does § 805-a(1)(c) expressly cover contracted municipal counsel?

No. The opinion says the statute does not expressly cover an independent contractor serving as a board attorney. It notes that representing a private client for pay before that board could still violate common-law conflict standards. Here the firm represented the town board, not a private client, and the ZBA could employ separate counsel. The opinion does not say who pays that counsel. See the original opinion.

Background and statutory framework

General Municipal Law § 805-a(1)(c) expressly applies to municipal officers and employees. The AG says it does not expressly cover an independent contractor serving as board attorney; a contractor’s compensated private-client representation before that board may instead violate common-law conflict standards. This opinion found neither a statutory nor a common-law conflict in representing the town board before the ZBA.

The opinion cites Cahn v Town of Huntington, 29 NY2d 451 (1972), for a municipal board’s implied authority to employ counsel in the public interest when the responsible municipal attorney refuses to act, is incapable, or is disqualified.

Citations

• General Municipal Law § 805-a(1)(c) (private-client representation bar).
• Cahn v Town of Huntington, 29 NY2d 451 (1972) (implied authority of municipal agency to retain counsel).
• Op Atty Gen (Inf) No. 93-36 (private-client representation by contracted counsel violated common-law conflict standards, although § 805-a did not expressly cover the contractor).
• Op Atty Gen (Inf) No. 83-37 (town attorney's general responsibility for legal services to town officers and agencies).
• Op Atty Gen (Inf) No. 88-10 (town may contract for legal services in lieu of establishing a town attorney position).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-41_pw.pdf

Original opinion text

GENERAL MUNICIPAL LAW § 805-a(1)(c).
Representation of the town board by the municipal attorney in a matter before the zoning board of appeals is not a violation of section 805-a(1)(c) of the General Municipal Law. The zoning board of appeals has implied authority to employ legal services regarding the matter. October 1, 1997

Donald G. Nichol, Esq.
Town Attorney
Town of Blooming Grove
P. O. Box 367
Walden, NY 12586-0367

Informal Opinion
No. 97-41

Dear Mr. Nichol:
You have asked whether representation by your law firm of the town board in an application before the town zoning board of appeals violates General Municipal Law § 805-a(1)(c). You have informed us that your law firm has been appointed by the town board to provide legal services to the board and to other agencies of the town including the zoning board of appeals. The applicant in a matter before the zoning board of appeals has taken the position that your firm's representation of the town board to provide input regarding this matter is a violation of section 805-a(1)(c) of the General Municipal Law. That provision states that no municipal officer or employee may 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 or of any municipal agency over which he has jurisdiction or to which he has the power to appoint any member, officer or employee
. . ..
Generally, the office of town attorney is responsible for the provision of legal services to officers and agencies of the town, except where the town board or a statute expressly authorizes an agency or officer to employ separate legal counsel. Op Atty Gen (Inf) No. 83-37. A town may, in lieu of establishing

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the position of town attorney, contract for the provision of legal services. Op Atty Gen (Inf) No. 88-10. Your law firm is providing services by contract to the town board and other officers and agencies of the town. In a prior opinion of this office, we found that while section 805-a(1)(c) of the General Municipal Law does not expressly cover an independent contractor employed as a board's attorney, the representation of a private client by the contractor for compensation in an application before the board is a conflict of interests. Op Atty Gen (Inf) No. 93-36. We found that even though this representation may not violate section 805-a(1)(c), it is a violation of common law conflict of interests standards. Id. As we found in our 1993 opinion, the purpose of section 805-a(1)(c) is to prohibit an officer, member or employee of a municipal agency from representing a private client for compensation before the agency he or she serves. The obvious intent of this provision is to avoid circumstances which may compromise the ability of the agency to make impartial decisions solely in the public interest. The risk of favoritism, overt or subconscious, is present. At least an appearance of impropriety would result if counsel to the agency appeared before it representing a private client for compensation. In our view, however, your law firm's representation of the town board in providing input in the matter before the zoning board of appeals does not fall within the prohibition of section 805-a. Nor is it a common law conflict of interests. The town board has a right to provide input regarding a matter before the zoning board of appeals and the town attorney or the attorney or law firm providing legal services to the town by law represents the town board. Unlike representation of a private client before an agency of the town, representation of the town board is in the public interest. This representation does not fall within the legislative intent of the prohibition of section 805-a(1)(c). Id. Obviously, your law firm cannot also represent the zoning board of appeals in this administrative proceeding. Notwithstanding any absence of statutory authority for the zoning board of appeals to obtain independent counsel, a municipal agency or board possesses implied authority to employ counsel in the public interest where the municipal or other attorney responsible for providing legal services refuses to act, is incapable of acting, or is disqualified from acting. Cahn v Town of Huntington, 29 NY2d 451 (1972). Therefore, where your law

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firm represents the town board, the zoning board of appeals has implied authority to employ legal counsel to represent it in the matter. We conclude that representation of the town board by the municipal attorney in a matter before the zoning board of appeals is not a violation of section 805-a(1)(c) of the General Municipal Law. The zoning board of appeals has implied authority to employ legal services regarding the matter. 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