Can a New York municipal housing authority pay one of its own board members extra for serving as a Civil Service Law § 75 disciplinary hearing officer, on top of regular per diem?

Plain-English summary

The Town of Oyster Bay Housing Authority had to discipline an employee under Civil Service Law § 75, which requires a hearing on stated charges. Section 75(2) lets the body with removal power either run the hearing itself or designate someone else to do it. The authority's board wanted to designate one of its own members to serve as the hearing officer and pay him an additional fee on top of his regular per diem for board meetings.

The problem: Public Housing Law § 32(3) caps annual compensation for housing authority members at $2,000 (members) or $2,500 (chair), plus necessary expenses including travel. The lawyer asking the question was worried the extra hearing-officer fee, added to the per diem the member was already collecting for attending board meetings, would push him past the cap.

The AG agreed the cap controlled. The reasoning: under Civil Service Law § 75(2), the board as a body has authority to run the hearing, so the hearing function is plainly a regular board duty. Designating a single board member to do it on behalf of the board does not transform the function into something outside that regular duty. The AG rejected the alternative reading as straining the statute, observing also that experienced hearing officers were readily available, so the authority was not stuck with a single board member as the only option. Public policy supported a firm reading of the cap.

The practical answer: if the board member's per diems and the hearing-officer fee together stay under $2,000 a year, the additional payment is fine. If they would exceed it, the board has to use an outside hearing officer instead.

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

Could the board hire an outside § 75 hearing officer?

Yes. Section 75(2) lets the body with removal power designate "a deputy or other person" to conduct the hearing in writing. The AG noted that hearing officers for § 75 hearings were readily available, which it used to support the conclusion that the board did not have to lean on its own members for this function.

What was the dollar cap in effect in 1998?

Per § 32(3), a member could receive up to $2,000 per annum and a chairman up to $2,500 per annum, in addition to necessary expenses including travel. The 1998 opinion does not address whether those figures have been adjusted by later amendments.

Does this rule reach beyond housing authorities?

The opinion is specific to Public Housing Law § 32(3), but the underlying logic generalizes: where a state statute sets an annual compensation cap for a public-body member, the cap cannot be evaded by paying extra for ordinary functions of the office under another label. Other statutes with their own per-annum caps would need to be analyzed on their own text.

What if the board's regular duty was unusually burdensome that year?

The cap is the cap. The AG did not entertain a fairness adjustment based on workload. A heavier year for the board would not justify going past $2,000 (or $2,500 for the chair); it would either be absorbed at the existing rate or paid by hiring outside help.

Could the housing authority chair sit as hearing officer and stay under the higher chair cap?

The opinion does not separately analyze that, but the logic applies the same way. Whatever the chair already drew in per diem for board attendance and other duties would count against the $2,500. If the chair's existing compensation was already at or near the cap, the chair could not be paid more to serve as hearing officer.

Background and statutory framework

Civil Service Law § 75 protects designated public employees from removal or discipline except for incompetence or misconduct shown after a hearing on stated charges. Section 75(2) places the hearing with the body holding removal power, with discretion to designate a deputy or other person.

The Public Housing Law sits separately. Section 32 governs the structure and compensation of municipal housing authorities. Section 32(3) caps annual per diem compensation at $2,000 for members and $2,500 for the chair, with necessary expenses including travel reimbursed on top of that cap.

The AG's 1998 conclusion lines up these two statutes by treating the § 75 hearing function, when performed by board members, as just another exercise of regular board duty. That keeps the integrity of the § 32(3) cap intact. The alternative reading, which would have allowed authorities to designate members for extra-pay hearing officer work, would have created a workaround the AG was unwilling to read into the statute.

Citations

• Civil Service Law § 75(1) (removal for incompetence or misconduct only after hearing).
• Civil Service Law § 75(2) (hearing held by removing body or by designated officer).
• Public Housing Law § 32(3) (per-annum compensation cap for housing authority members and chair).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-31_pw.pdf

Original opinion text

CIVIL SERVICE LAW § 75; PUBLIC HOUSING LAW § 32. The Board of a Municipal Housing Authority may not pay one of its members to conduct a hearing pursuant to Civil Service Law
§ 75 if the payment, when added to other compensation, exceeds the statutory compensation limit.

July 10, 1998
Jack D. Tillem, Esq.
Town of Oyster Bay Housing
Authority
P. O. Box 351
Plainview, NY 11803

Informal Opinion
No. 98-31

Dear Mr. Tillem:
You have asked whether the Town of Oyster Bay Housing Authority may pay a member of its Board an additional fee for his service as the hearing officer designated by the Board to conduct a disciplinary hearing required for an employee of the Authority pursuant to Civil Service Law § 75 or whether payment is precluded by annual compensation limitations. Section 75 provides that designated employees shall not be removed or subjected to discipline except for incompetence or misconduct shown after a hearing upon stated charges. Civil Service Law
§ 75(1). The statute also provides that "the hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose." Id. § 75(2). The Board of the Authority exercises the power of removal. Thus, under the Civil Service Law the Board as a body must conduct the hearing unless it designates another person to do so. The Board would like to designate and compensate a Board member to conduct the hearing. The compensation paid to members of the Authority is governed by the Public Housing Law, which provides in part that: A member of an authority may be compensated on a per diem basis at a rate to be fixed by the authority not to exceed in the aggregate two thousand dollars for a member and two thousand five hundred dollars for a chairman per annum and in addition shall be entitled

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to the necessary expenses including traveling expenses incurred in the discharge of his duties. Public Housing Law § 32(3). Your concern is that compensation of the member for service as a hearing officer will, when added to other per diem payments for attending Board meetings, exceed the statutory limit. In our view, payment of the Board member as a hearing officer is subject to the statutory compensation limit for Board members. Under section 75(2) of the Civil Service Law, the Authority Board may conduct the hearing. That function would be part of the regular duties of the Board subject to statutory compensation limits. Similarly, the designation of a Board member to conduct the hearing and make a recommendation to the Board, in our view, is part of the Board member's regular duties, subject to annual compensation limits. Any argument that a regular Board duty, when performed by a single member, falls outside statutory compensation limits stretches credulity and the clear statutory intent of the Public Housing Law setting a firm limit on payment for Authority Board duties. Also, in that hearing officers for section 75 hearings are readily available, it is unnecessary to select a Board member for this function. We believe it would be contrary to public policy to construe the statute to exempt this payment under these circumstances. We conclude that the Board of a Municipal Housing Authority may not pay one of its members to conduct a hearing pursuant to Civil Service Law § 75 if the payment, when added to other compensation, exceeds the statutory compensation limit. 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