Can the Dutchess County Transportation Program Administrator also serve on the City of Poughkeepsie Planning Board, given that the County reviews some of the City Planning Board's actions?

Plain-English summary

The City of Poughkeepsie's Assistant Corporation Counsel asked whether a particular dual role was compatible. The person at issue worked for the Dutchess County Department of Planning and Development as the Transportation Program Administrator. He reported to the County Commissioner of Planning and Development and coordinated transportation planning activities with federal, regional, State, and local government agencies, including running the transportation model used to evaluate future transportation, land-use, and demographic changes in the County. He also wanted to serve on the City of Poughkeepsie Planning Board.

The compatibility concern was the statutory referral system. Under General Municipal Law §§ 239-l and 239-m, a municipal planning board must refer certain proposed actions to the county planning agency for review and recommendation, and can override that recommendation only by a majority-plus-one vote of its full membership (§ 239-m(5)). In Dutchess County, the Charter places those review duties on the Commissioner of Planning, who acts with the advice of the County Planning Board. The Transportation Program Administrator reports to the Commissioner. So the City Planning Board's actions could theoretically flow up to a body that included the Administrator's chain of command.

The AG concluded the positions are compatible. Two statutory cross-references make this an explicit policy choice by the Legislature. First, General Municipal Law § 239-b(1) provides that "[m]embers of municipal boards, bureaus or commissions, including but not limited to legislative bodies, planning boards or zoning boards of appeals, may serve as members of county or regional planning boards." It then immediately addresses the conflict question: a member who serves on both must "excuse himself or herself from any vote relating to a matter or proposal before such county or regional planning board which is or has been the subject of a proposal, application or vote before the municipal board of which he or she is a member." Second, General City Law § 27(12) makes the symmetric point: "[n]o person shall be disqualified from serving as a member of the city planning board by reason of serving as a member of a county planning board."

The Legislature, in other words, decided that the statutory referral process under § 239-m does not automatically incompatibilize dual planning-board membership; recusal handles the conflicts that arise on specific matters.

The Poughkeepsie situation was even further from incompatibility. The Transportation Program Administrator is not the County Planning Board (he reports to the Commissioner of Planning, who has the actual review authority) and does not directly review City Planning Board actions. His role is broad transportation policy across the County. The connection between his County job and the City Planning Board's actions is more attenuated than the dual-planning-board fact pattern that § 239-b(1) directly addresses. If the legislature treats the dual-planning-board case as compatible with recusal, this less direct combination is even more clearly compatible.

The AG ran the standard People ex rel. Ryan v Green compatibility test for completeness: one position is not subordinate to the other, and the duties are not inherently inconsistent. Recusal on specific matters where the Transportation Program Administrator's County work intersected with the City Planning Board's would handle any actual conflicts.

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

What's a § 239-m referral?

Under General Municipal Law § 239-m, a municipal planning board must refer specific categories of proposed actions (zoning changes, subdivision approvals, special use permits, area variances, and other items in the statute) to the county planning agency for review and recommendation, if the property at issue is within 500 feet of certain features (county/state property, municipal boundary, stream, etc.). The county agency's recommendation is advisory; the municipal board can override only by a supermajority (majority of the full board plus one) under § 239-m(5).

Could the Transportation Program Administrator vote on a § 239-m referral involving City Planning Board action?

Probably not, depending on how the County structured its review. The Administrator works for the Commissioner of Planning, who under the Dutchess Charter exercises the county-planning-agency review function. If the Administrator played any role in the County's review, basic conflict principles would require recusal. But the structural question (can he hold both jobs at all) is settled in his favor.

Why does General City Law § 27(12) matter?

It is the city-side companion to General Municipal Law § 239-b(1). The two together cover both directions of the dual-membership question. § 239-b(1) says serving on a municipal board does not disqualify someone from county or regional planning board membership; § 27(12) says serving on a county planning board does not disqualify someone from a city planning board. The combined effect is to take dual planning-board membership off the incompatibility table entirely.

Does this opinion apply to villages and towns as well as cities?

The opinion is framed around a City Planning Board because that's what Poughkeepsie has. The General Municipal Law § 239-b(1) authorization is broader and covers town and village boards too. The General City Law § 27(12) carve-out is city-specific, but parallel provisions in Town Law and Village Law cover those municipalities.

Could a county explicitly bar this through its charter or local law?

The opinion does not address local override authority. The AG's analysis rests on State statutes that authorize the dual role. A county charter or local law that tried to bar dual planning-board membership would face a preemption argument under those State statutes.

Background and statutory framework

The referral framework in General Municipal Law §§ 239-l and 239-m is the connective tissue between municipal land-use decision-making and county-level coordination. Counties get an advisory voice in significant municipal actions; municipalities retain ultimate authority but at a higher voting threshold for overrides.

The compatibility carve-outs in § 239-b(1) and General City Law § 27(12) reflect a different policy choice: the State wants counties' planning boards to have the local expertise that municipal-board members bring, and wants municipal boards to have the county-level perspective that county-board service provides. The Legislature considered the conflict-of-interests risk and decided that recusal on specific matters is enough.

The 1998 opinion fits the AG's general pattern of finding compatibility where the Legislature has spoken explicitly. When the State statute authorizes the dual role, the AG defers to that authorization rather than reading common-law incompatibility back in.

Citations

• General City Law § 27 (city planning board structure).
• General City Law § 27(12) (no disqualification from city planning board for serving on county planning board).
• General Municipal Law § 239-b (authorization for municipal-board members to serve on county/regional planning boards; recusal rule).
• General Municipal Law § 239-b(1) (compatibility authorization and recusal rule).
• General Municipal Law § 239-l (county planning agency advisory functions).
• General Municipal Law § 239-m (referral process; supermajority override under § 239-m(5)).
• People ex rel. Ryan v Green, 58 NY 295 (1874) (leading case on compatibility of office).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-55_pw.pdf

Original opinion text

GENERAL CITY LAW § 27; GENERAL MUNICIPAL LAW §§ 239-l, 239-m. The County Transportation Program Administrator may also serve on the City of Poughkeepsie Planning Board.

December 21, 1998
Paul E. Schwerman, Esq.
Assistant Corporation Counsel
City of Poughkeepsie
P. O. Box 300
Poughkeepsie, NY 12602

Informal Opinion
No. 98-55

Dear Mr. Schwerman:
You have asked whether an individual may serve as a member of the City of Poughkeepsie Planning Board and be employed by the Dutchess County Department of Planning and Development as the Transportation Program Administrator. The Administrator reports directly to the County Commissioner of Planning and Development and is responsible for coordinating transportation planning activities with federal, regional, state and local government agencies. Among other things, the Administrator also directs the development of the transportation model used to evaluate future transportation, land use and demographic changes in the County. You have asked whether review by the County of some of the City Planning Board's proposed actions makes these positions incompatible. Section 12.02 of the Dutchess County Charter provides that the Commissioner of Planning "shall have all the powers and perform all the duties conferred or imposed by law upon . . . a county planning board." The Charter also creates an advisory County Planning Board and assigns it responsibility to consider and advise the Commissioner on "matters relating to metropolitan, regional, county or municipal planning." Id., § 12.03. Thus, matters referred under the terms of General Municipal Law §§ 239-l and 239-m are reviewed by the Commissioner with the advice of the Board. Those sections require a municipal planning board to refer certain proposed actions to its county planning agency for review and recommendation. The municipal planning board may act contrary to the county's recommendation only by a vote of a majority plus one of the planning board's members. Id., § 239-m(5).

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In our view, this circumstance does not make the positions you have asked about incompatible. Neither is subordinate to the other and there is no inherent inconsistency between them. Significantly, the General Municipal Law provision that authorizes creation of regional or county planning boards states that "[m]embers of municipal boards, bureaus or commissions, including but not limited to legislative bodies, planning boards or zoning boards of appeals, may serve as members of county or regional planning boards." General Municipal Law § 239-b(1). The statute goes on to state that
[a]ny member of a municipal board who serves as a member of a regional or county planning board may participate in any deliberations of such county or regional board, but shall excuse himself or herself from any vote relating to a matter or proposal before such county or regional planning board which is or has been the subject of a proposal, application or vote before the municipal board of which he or she is a member. Id. Similarly, the General City Law provision authorizing the creation of City Planning Boards provides that "[n]o person shall be disqualified from serving as a member of the city planning board by reason of serving as a member of a county planning board." General City Law § 27(12). Thus, the Legislature has determined that the statutory referral process described above does not disqualify one person from serving on both a City Planning Board and a County Planning Board even though the County Planning Board may review some of the City Planning Board's actions. Presumably, recusal was found to be an effective remedy to eliminate any conflicts of interests. General Municipal Law
§ 239-b(1).
In the situation you describe, there is a less direct connection between the positions because the Administrator will not be responsible for direct review of the City's proposed actions. The Administrator has responsibility for establishing broad transportation policies on a county-wide basis. Accordingly, the ositions are compatible. We conclude that the County Transportation Program Administrator may also serve on the City of Poughkeepsie Planning Board. The Attorney General renders formal opinions only to officers and departments of State government. This perforce is

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an informal and unofficial expression of the views of this office. Very truly yours,

SIOBHAN S. CRARY
Assistant Attorney General