Can a town highway superintendent privately moonlight for the town's water district, operating heavy equipment to repair water pipes located under town roads?

Plain-English summary

The Town of Amenia entered into a municipal cooperation agreement with its town water district. Under the agreement, the town would lease heavy equipment to the district. The town highway superintendent was an experienced heavy-equipment operator and the water district wanted to hire him privately to operate the equipment for water-line repairs. The Town Attorney asked whether that side work was permissible.

The AG said no.

Town Law § 198(3) authorizes a town water district to construct and maintain water mains and conduits in, on, along, or under the surface of any road within the district. The same provision puts that work "subject to the supervision of the town superintendent of highways." When the work is in the road, the highway superintendent has supervisory authority over it.

The highway superintendent cannot supervise his own work impartially. If he is hired privately to operate equipment on a water-district repair job, his official supervisory role over the road work conflicts with his private interest in the job. Even if he could keep the two roles fully separate in his head, the appearance of impartial supervision is destroyed. The same problem arises if he does the work in his official capacity using town equipment and then is paid separately by the district: he is supervising his own conduct in the road right-of-way.

The opinion concluded that operation of heavy equipment by the highway superintendent on a water district pipe repair under the road, in either his official or private capacity, was a conflict of interest. The opinion did not specify a remedy; the implicit remedy is that the water district must use someone other than the highway superintendent for this work.

Currency note

This opinion was issued in 1998. 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 is the highway superintendent's private work a problem if the water district pays him separately?

Because Town Law § 198(3) gives the highway superintendent supervisory authority over the underlying road. The repair work is in the road. The superintendent's job is to supervise that work. If he is also performing the work for pay from the district, he is supervising himself.

Could the town have addressed this by transferring supervisory authority elsewhere?

In theory, a special arrangement might shift supervisory authority for a specific job to a different town officer. The opinion does not bless that workaround, and it would have required scrutiny under the same conflict-of-interest principle: any reassignment would need to be transparent and would need to ensure that the supervising officer was not in some way subordinate to or dependent on the highway superintendent.

What if the water district performed the work entirely on water district equipment, without using town equipment?

The supervisory issue would remain. The conflict arises from § 198(3), which makes the road-work subject to highway superintendent supervision regardless of whose equipment is used. The municipal cooperation agreement provided town equipment, but the supervisory problem comes from the road, not the equipment.

Is this only a problem for the highway superintendent, or for any town officer?

The opinion is specific to the highway superintendent because § 198(3) names that officer. A different town officer (a town board member, a town clerk) doing the same private work would not face the § 198(3) supervisory conflict. The officer might face other conflict-of-interest issues, but they would be analyzed under General Municipal Law § 800 et seq. (the standard municipal conflicts framework) rather than § 198(3).

Did the AG consider any cure or waiver?

No. The opinion simply identifies the conflict. Municipal officials generally cannot "waive" conflicts in this category because the public interest, not just the official's own interest, is at stake. The ordinary cure is to decline the conflicting position.

What if the water district was an outside contractor with no connection to the town?

The same analysis would apply for road work. § 198(3) gives the highway superintendent supervisory authority over water main work in the road. Whether the work is performed by the district itself, a contractor working for the district, or someone hired in any other capacity, the road work is subject to the superintendent's supervision and he cannot supervise his own work.

Background and statutory framework

Town Law § 198(3) is part of the comprehensive town water district statutory scheme. The provision authorizes a town water district to lay and maintain water mains, conduits, and appurtenances in town roads, subject to the highway superintendent's supervision. The supervisory role is a check on water district work in the road, to ensure road integrity and coordination with other public works.

The conflict-of-interest framework underpinning this opinion is broader than § 198(3). General Municipal Law § 800 et seq. (the standard municipal conflicts framework) addresses statutory conflicts; People ex rel. Ryan v Green and its progeny address common-law conflicts. The 1998 opinion focuses specifically on the structural conflict in § 198(3) and does not analyze the broader frameworks in detail.

The opinion's reasoning generalizes. Any time a statute makes one official the supervisor of another official's or contractor's work, the supervising official should not personally perform that work. The principle is structural.

Citations

• Town Law § 198(3) (town water district authorization to construct water mains in roads; subject to highway superintendent supervision).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-11_pw.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

TOWN LAW § 198(3).

A conflict of interests results if the town highway superinten-
dent in his official or private capacity operates heavy equipment on
behalf of a water district in the town to repair water pipes located
under a road.

March 18, 1998

David Hagstrom, Esq. Informal Opinion
Town Attorney No. 98-11

Town of Amenia

P. O. Box 112

Poughkeepsie, NY 12602

Dear Mr. Garrity:

You have explained that the Town of Amenia has approved a munici-
pal cooperation agreement with the town water district under which the
town will lease certain heavy equipment to the district. You have
asked whether the town highway superintendent, who is an experienced
heavy equipment operator, may in a private capacity be employed by the
water district to operate the equipment. The heavy equipment would be
used to uncover water lines located under a road and repair these
lines.

In our view, the undertaking of this work by the highway superin-
tendent in his official or private capacity is a conflict of inter-
ests. Under section 198(3) of the Town Law, a town water district is
authorized to construct and maintain water mains and conduits in, on,
along or under the surface of any road within the water district.

This provision makes the work "subject to the supervision of the town
superintendent of highways". It is apparent that the superintendent
of highways cannot impartially supervise his own work.

We conclude that a conflict of interests results if the town
highway superintendent in his official or private capacity operates
heavy equipment on behalf of a water district in the town to repair
water pipes located under a road.

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