Can a New York county pass an ethics code amendment barring people appointed to county office by the county legislature from also serving as executive officers (chair, vice-chair, treasurer, secretary) of a political party?

Plain-English summary

Niagara County wanted to amend its Code of Ethics to prohibit any person appointed to county office by the county legislature or its chairman from simultaneously holding an executive office (chair, vice-chair, treasurer, or secretary) in a political party organization. The county asked whether such a restriction would be lawful.

The AG answered yes, subject to one condition: the county must make legislative findings showing a legitimate governmental interest. The reasoning works in three layers.

First, statutory authority. General Municipal Law § 806 requires every municipality (including counties) to adopt a code of ethics setting standards of conduct for officers and employees. The proposed amendment fits inside that mandate. In parallel, Municipal Home Rule Law § 10 authorizes local laws on the powers, duties, qualifications, terms, and conditions of employment of officers and employees, and on the protection, order, safety, health, and well-being of persons within the locality. A dual-officeholding bar tied to ethics is squarely within those grants.

Second, constitutional analysis. The leading case is Golden v Clark, 76 NY2d 618 (1990). The Court of Appeals upheld a New York City Charter amendment that required certain high city officers to give up political party offices as a qualification for holding public office. The Court applied a rational basis test, drawing on Matter of Rosenstack v Scaringe, 40 NY2d 563 (1973) (upholding the prohibition on multiple family members serving on the same school board under Education Law § 2103(3)). Under Bullock v Carter, 405 US 134 (1972), restrictions on the right to hold office do not warrant strict scrutiny unless they impose burdens on wealth-based ballot access or unequal treatment of small parties. A neutral, generally applicable rule barring dual public-party officeholding is reviewed under rational basis.

Third, the legitimate interests the county would invoke. Golden v Clark identified four: eliminating conflicts of interest from simultaneous demands of constituency and party, broadening opportunities for political participation, reducing opportunities for corruption inherent in dual officeholding, and increasing citizens' confidence in government integrity. Any one is a legitimate governmental interest under rational basis review; together they easily clear the bar.

The conditional ("assuming appropriate legislative findings") is important. The county legislature should make explicit findings in the enacting local law about the governmental interests served. Findings provide the rational basis record that supports judicial review and helps insulate the amendment from challenge.

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

Why does the county need explicit legislative findings?

Courts reviewing local laws under rational basis ask whether the legislative body had a legitimate purpose. Express findings make the purpose visible on the face of the law and protect against challenges that argue the restriction is arbitrary. Golden v Clark relied on the New York City Charter Revision Commission's findings about the purposes of § 2604(b)(15). A similar findings record at the Niagara County level would parallel that posture.

What level of judicial scrutiny applies?

Rational basis. Under Bullock v Carter and the Rosenstack line, restrictions on the right to hold public office are not subject to strict scrutiny unless they involve wealth-based ballot barriers or unequal treatment of small parties. A neutral, generally applicable rule that applies to all county appointees regardless of party affiliation falls under rational basis review.

Does this restriction violate the appointee's First Amendment rights?

The opinion treats Golden v Clark as foreclosing this concern. The Court of Appeals there found that the New York City Charter amendment did not prevent officials from engaging in a broad range of personal or financial activity in support of a candidate or cause. Only specific party executive offices were affected. The de minimis burden on expression and association was outweighed by the governmental interests.

What if a county appointee wants to be just a party member, not an executive officer?

The amendment is targeted at executive offices: chair, vice-chair, treasurer, secretary. Ordinary party membership or volunteer activity is not within its scope. The narrowness is part of what makes the restriction survive constitutional review.

Does this apply only to legislator appointees?

As proposed, yes. The amendment targets people appointed to county office by the county legislature or its chairman. Elected county officials are not within its scope. The legislature could expand the rule, but the narrower scope is easier to justify.

What practical effect does this have?

A person who wants to be appointed to a county board (planning board, civil service commission, ethics board, agency board) and also serve as a party executive officer would have to choose between the two. The amendment forces that choice rather than allowing both roles to coexist.

Background and statutory framework

General Municipal Law § 806 mandates that every municipality adopt a code of ethics setting standards of conduct for officers and employees. § 806 expressly authorizes provisions like the one proposed.

Municipal Home Rule Law § 10(1)(i) and (ii)(a)(1) authorize local laws relating to the local government's property, affairs, or government, and the qualifications and terms and conditions of employment of its officers and employees. § 10(1)(ii)(a)(12) covers the local police power for safety, health, and well-being.

Golden v Clark, 76 NY2d 618 (1990), is the controlling New York case on dual public-office and party-office restrictions. The Court of Appeals upheld § 2604(b)(15) of the New York City Charter under rational basis review, identifying the four governmental interests described above. Matter of Rosenstack v Scaringe, 40 NY2d 563 (1973), is the parallel case on Education Law § 2103(3) (the family-member bar on school boards). Bullock v Carter, 405 US 134 (1972), supplies the federal framework for selecting the level of scrutiny.

Citations

• Education Law § 2103(3) (school board family-member bar; upheld in Rosenstack).
• General Municipal Law § 806 (municipal ethics code requirement).
• Municipal Home Rule Law § 10(1)(i) (local laws on property, affairs, government).
• Municipal Home Rule Law § 10(1)(ii)(a)(1) (local laws on qualifications and employment terms of officers and employees).
• Municipal Home Rule Law § 10(1)(ii)(a)(12) (local police power).
• Golden v Clark, 76 NY2d 618 (1990) (upheld NYC Charter dual-officeholding bar under rational basis).
• Matter of Rosenstack v Scaringe, 40 NY2d 563 (1973) (upheld Education Law § 2103(3) school board family-member bar).
• Bullock v Carter, 405 US 134, 142-144 (1972) (federal framework for scrutiny of office-holding restrictions).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-50_pw.pdf

Original opinion text

EDUCATION LAW § 2103(3); GENERAL MUNICIPAL LAW § 806; MUNICIPAL
HOME RULE LAW § 10(1)(i) and (ii)(a)(1).
Assuming appropriate legislative findings have been made
establishing a legitimate governmental interest, a proposed
amendment to the Niagara County Code of Ethics, which would
prohibit any person appointed to a county office by the
Legislature and/or the chairman of the Legislature from holding
an executive office in a political party organization, is
authorized and lawful.

November 5, 1997

Glenn S. Hackett, Esq.
County Attorney
County of Niagara
Niagara County Courthouse
Lockport, NY 14094-2740

Informal Opinion
No. 97-50

Dear Mr. Hackett:
You have asked whether a proposed local law amending the
Niagara County Code of Ethics, which would prohibit any person
appointed to a county office by the county legislature and/or the
chairman of the legislature from holding an executive office in a
political party organization, is lawful. Under the proposal,
"executive office" is defined as the chairman, vice-chairman,
treasurer or secretary of the party.
There is ample authority for the enactment of the proposed
local law amending the Code of Ethics. Under section 806 of the
General Municipal Law, each municipality, including a county, is
required to adopt a code of ethics setting forth the standards of
conduct reasonably expected of its officers and employees. By
its terms, section 806 authorizes the ethics provision proposed
by the county. Additionally, the proposal may be authorized
under the grant of home rule authority in section 10 of the
Municipal Home Rule Law, permitting local governments to enact
local laws, consistent with the Constitution and general State
laws, relating to their property, affairs or government; the
powers, duties, qualifications, and other terms and conditions of
employment of their officers and employees; and the protection,
order, government, conduct, safety, health and well-being of
persons or property therein. Municipal Home Rule Law § 10(1)(i)
and (ii)(a)(1), (12).

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The Court of Appeals has upheld a similar provision. A
proposed amendment to the New York City Charter requiring certain
high City officers to forego specific political party offices as
a qualification for holding public office was before the Court in
Golden v Clark, 76 NY2d 618 (1990). The proposal was attacked on
several grounds under the State Constitution including denial of
equal protection of the law. Golden v Clark, 76 NY2d at 624.
The Court discussed its prior decision in Matter of
Rosenstack v Scaringe, 40 NY2d 563 (1973), in which the plaintiff
challenged section 2103(3) of the Education Law, which prohibits
more than one member of a family from being a member of the same
board of education in any school district. In Rosenstack, the
Court of Appeals held, citing, Bullock v Carter, 405 US 134,
142-144 (1972), that the direct impact of the law was on the
right to hold office which did not warrant strict scrutiny of the
statute in determining an equal protection challenge. Golden v
Clark, 76 NY2d at 624. The Court of Appeals in Rosenstack
reasoned that the statute had only an incidental effect and did
not disenfranchise any identifiable class of the electorate.
Golden v Clark, 76 NY2d at 624. Rejecting the equal protection
challenge, the Court applied a rational basis test and found the
law to be rationally related to the legitimate State interest of
ensuring that a board of education represents a wide cross
section of the community. Golden v Clark, 76 NY2d at 624. The
Court in Golden found no basis for distinguishing the position of
school board member, reviewed in Rosenstack, from offices of
other municipal corporations. Golden v Clark, 76 NY2d at 624.
In that the State Constitution's Equal Protection guarantee
is as broad as coverage under the Fourteenth Amendment, the Court
in Golden also considered two types of ballot access cases
identified by the United States Supreme Court to involve
fundamental rights and, therefore, requiring heightened scrutiny.
Golden v Clark, 76 NY2d at 624. These cases involved
restrictions based on wealth, which unfairly burden political
opportunity, and restrictions arising from classifications
imposing burdens on new or small political parties or independent
candidates. Golden v Clark, 76 NY2d at 624. The Court of
Appeals found that the proposed amendment to the City Charter was
neutral in its application and did not create a barrier based on
wealth, political affiliation or political viewpoint. Golden v
Clark, 76 NY2d at 626.
The Court reasoned that the proposed amendment to the New
York City Charter could be sustained against an equal protection
challenge if it was shown to be rationally related to a
legitimate State interest. Golden v Clark, 76 NY2d at 626. The

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purpose of the proposed amendment of the New York City Charter
was described and found by the Court of Appeals to promote a
legitimate governmental interest:
Section 2604(b)(15) is intended to eliminate
conflicts of interest that arise when high
public officials are simultaneously subject
to the demands of both their constituencies
and their political parties, to broaden
opportunities for political and public
participation, to reduce the opportunities
for corruption inherent in dual
officeholding, and, through all of these
methods, to increase citizens' confidence in
the integrity and effectiveness of their
government. These are legitimate
governmental purposes and have been
identified as such both judicially and
legislatively. Golden v Clark, 76 NY2d at
626.
The Court of Appeals also found that the proposed charter
provision did not prohibit City officials from engaging in a
broad range of personal or financial activity in support of a
candidate or cause. Golden v Clark, 76 NY2d at 630. "Any
de minimis burden the Charter provision imposes on individual
rights of expression or association is justified by the important
governmental interests underlying it." Golden v Clark, 76 NY2d
at 630.
In our view, assuming appropriate legislative findings have
been made by the Niagara County legislature establishing a
legitimate governmental interest, the proposed amendment to the
Niagara County Code of Ethics is authorized and lawful.
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