Can the same person serve as the Director of a county planning board and as a member of the county industrial development agency in New York?

Plain-English summary

The Fulton County Attorney asked whether one person could simultaneously serve as Director of the Fulton County Planning Board and as a member of the Fulton County Economic Development Agency, an industrial development agency (IDA) operating under Article 18-A of the General Municipal Law.

The AG concluded yes. Two layers of analysis support the result.

First, the IDA enabling statute itself anticipates exactly this situation. General Municipal Law § 856(4) provides that one or more members of an IDA "may be an official or an employee of the municipality," and that accepting or retaining such an appointment "shall not be deemed a forfeiture of his municipal office or employment, or incompatible therewith or affect his tenure or compensation in any way." Where a special act of the legislature creating an IDA appointed a municipal official or employee, the IDA term tracks the underlying municipal term. The Legislature in this provision made a categorical compatibility judgment for the IDA-and-municipal-official combination.

Second, the duties of the two roles align rather than conflict. The Planning Board Director directs strategic planning, capital planning, comprehensive land use plans, zoning programs, and economic development programs and grant proposals. The IDA's statutory mandate under § 858 is to promote and assist development of industrial, manufacturing, warehousing, commercial, research, and recreational facilities, with the explicit constraint that IDAs in undertaking projects must comply with local zoning and planning regulations and consider regional and local comprehensive land use plans. Putting a Planning Director on the IDA gives the IDA the very planning expertise the statute tells it to use, and it sharpens the IDA's compliance with the local zoning that the Planning Director helps administer.

The AG ran the standard Ryan v Green compatibility test as well, noting that one position is not subordinate to the other and the duties are not inherently inconsistent. Compatibility does not eliminate the possibility of case-by-case conflicts; where a conflict of interests arises on a specific matter, the holder of both positions should recuse from that matter.

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

Does General Municipal Law § 856(4) extend beyond IDA-and-municipal-official combinations?

Section 856(4) is specific to IDA membership. The carve-out from incompatibility runs to the IDA side, not in the other direction. The principle (that the Legislature has authorized dual roles) cuts in one direction and one direction only. For other municipal-board-plus-IDA pairings, the same analysis applies; for combinations of two municipal offices, the Ryan v Green test applies without the § 856(4) safety valve.

When would a Planning Director on the IDA have to recuse?

Specific IDA projects where the Planning Director's earlier zoning or planning recommendations were the central question, or where the IDA's vote on a project would directly contradict his own prior advice in his Planning Director role. The opinion's compatibility holding does not give the official a blank check to ignore case-by-case conflicts.

What does an IDA actually do?

IDAs under Article 18-A of the General Municipal Law are public benefit corporations created to promote economic development by financing industrial, commercial, manufacturing, warehousing, recreation, and research facilities. They can borrow money, issue bonds, acquire and construct or lease projects, and acquire interests in real property, subject to local zoning and planning compliance.

Did the AG distinguish this from cases where it found dual roles incompatible?

The opinion does not explicitly do so, but the contrast with Op No. 98-44 (decided the same day) is instructive: the IDA-and-Planning-Director combination has aligned duties (both want zoning-compliant economic development) and a statutory compatibility provision (§ 856(4)). The 98-44 building-inspector-and-fire-investigator combination had conflicting duties (one reviews the other's work) and no compatibility statute.

Could a Planning Director chair the IDA?

The opinion doesn't analyze chairmanship separately. Section 856(4)'s safe harbor extends to "appointment as a member" of the agency. Chairing an IDA is a member role plus a chair designation; nothing in the statute distinguishes them, and the AG's compatibility reasoning would apply equally.

Background and statutory framework

Article 18-A of the General Municipal Law (§§ 850-888) authorizes local IDAs as public benefit corporations. Each IDA is created by a special act of the Legislature on behalf of a specific municipality. The agencies have broad authority to acquire, finance, and lease industrial and commercial projects, but their charters include the explicit constraint that projects must comply with local zoning and planning.

Section 856(4) is the statutory compatibility provision: an IDA member can also be a municipal official or employee without creating an incompatibility problem under common-law doctrine. The Legislature wrote this in deliberately, because local officials' planning and economic-development expertise is precisely what IDAs need.

The 1998 opinion fits within the AG's broader compatibility jurisprudence, which generally accepts dual office holding unless duties are subordinate (one supervises the other) or inherently inconsistent (one reviews the other's work, votes against the other's interests, etc.). The IDA-and-Planning-Director pairing meets neither incompatibility test.

Citations

• General Municipal Law § 856 (IDA structure and membership).
• General Municipal Law § 856(4) (express authorization for municipal officials and employees to serve as IDA members).
• General Municipal Law § 858 (IDA powers and purposes; local zoning and planning compliance requirement).
• People ex rel. Ryan v Green, 58 NY 295 (1874) (leading case on office compatibility).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-45_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Page 1 of 2

Opn. 98-45
GENERAL MUNICIPAL LAW, ART 18-A, §§ 856, 858.
The positions of member of The Fulton County Economic Development Agency, an industrial
development agency, and Director of the Fulton County Planning Board are compatible. Taking into
consideration the broad duties of the Fulton County Planning Board Director in economic development
and land use planning; section 856(4) of the General Municipal Law; and the enabling legislation for
IDA's requiring that in undertaking projects they adhere to local zoning and consider comprehensive
land use plans, we see no conflict between the duties of these two offices.
November 2, 1998
Arthur Carl Spring, Esq.
County Attorney
County of Fulton
County Building
Johnstown, NY 12095

Informal Opinion
No. 98-45

Dear Mr. Spring:
You have asked whether it is a conflict of interests for a person to serve as director of the Fulton
County Planning Board and as a member of the Fulton County Economic Development Agency, an
industrial development agency (IDA) operating under article 18-A of the General Municipal Law. You
have withdrawn the other inquiry in your opinion request.
You have forwarded to us the job description of the position of Planning Board Director. The
Director directs, manages and administers county planning, including strategic and tactical planning,
capital planning, major program planning and construction management. The officeholder is responsible
for overseeing preparation of comprehensive land use plans, zoning and economic development
programs and grant proposals for governmental funding. Generally, he is responsible for hiring staff and
managing an office. In undertaking his duties, the Director confers with public officials, professional
and civil organizations and others with an interest in the planning process.
The person serving as Director also serves as a member of the County IDA. These agencies are
created by the Legislature to promote, develop and assist in the development of facilities for industry,
manufacturing, warehousing, commercial research, recreation, etc. General Municipal Law § 858. An
IDA's purpose is to advance job opportunities, health, general prosperity and economic welfare of the
people of the State and to improve their recreational opportunities. Id. To carry out its functions, an IDA
specifically is empowered to borrow money and to issue bonds; to acquire, construct, maintain or equip
a project; and to lease projects which may include an option for purchase. Id. Significantly, an agency
may acquire interests in real property, which must be utilized in compliance with local zoning and
planning regulations and giving consideration to regional and local comprehensive land use plans. Id.
Your inquiry falls within the doctrine of compatibility of offices. 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

http://www.oag.state.ny.us/lawyers/opinions/1998/informal/98_45.html

4/20/2006

OPINIONS OF THE ATTORNEY GENERAL

Page 2 of 2

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 the principle equally covers an
office and a position of employment or two positions of employment. Also, where positions are
compatible, a conflict of interests may arise out of the simultaneous holding of the positions. The
conflict can be avoided by declining to participate in the disposition of the particular matter.
Returning to your inquiry, one position is not subordinate to the other. The question remains
whether there is a conflict between the duties of the two positions that would make them incompatible.
In our view, the positions are compatible. Under article 18-A of the General Municipal Law,
[a]ny one or more of the members of an agency [an industrial development agency]
may be an official or an employee of the municipality. In the event that an official or an
employee of the municipality shall be appointed as a member of the agency, acceptance or
retention of such appointment shall not be deemed a forfeiture of his municipal office or
employment, or incompatible therewith or affect his tenure or compensation in any way.
The term of office of a member of an agency who is an official or an employee of the
municipality when appointed as a member thereof by special act of the legislature creating
the industrial development agency shall terminate at the expiration of the term of his
municipal office. Id., § 856(4).
In any event, we see no conflict of duties. IDAs, in undertaking projects, are required to adhere to
local zoning and land use regulations and must take into consideration comprehensive land use plans.
The Planning Board Director oversees economic development programs and the land use planning
process. Membership on the IDA of the Director of the County Planning Board provides to the IDA
expertise in economic development and facilitates IDA project compliance with local zoning and IDA
consideration of land use plans. Taking into consideration the broad duties of the Fulton County
Planning Board Director in economic development and land use planning; section 856(4) of the General
Municipal Law; and the enabling legislation for IDA's requiring that in undertaking projects they adhere
to local zoning and consider comprehensive land use plans, we see no conflict between the duties of
these two offices.
We conclude that the positions of member of a county industrial development agency and director
of a county planning board 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
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4/20/2006