How many city officials can sit on a New York public housing authority board at the same time?

Plain-English summary

The Utica Municipal Housing Authority had three of its commissioners with apparent city connections: the Utica Commissioner of Public Safety, a member of the Utica Zoning Board of Appeals, and a member of the Utica Parking Authority. Counsel asked the AG whether that composition violated Public Housing Law § 30(4), which caps housing-authority board membership for municipal officials.

The AG ran the analysis through the statute's exact language. Section 30(4) says "[n]ot more than one member [of the Board] of an authority may be an official or an employee of the municipality at any one time." The provision then specifies that municipal officers who take housing-authority appointments do not forfeit their municipal office, and their term on the authority ends when their municipal term ends. The structural intent is clear: one municipal representative, not two.

Applying the statute to Utica:

The Parking Authority member is not a city officer. The Utica Parking Authority is a public-benefit corporation under Public Authorities Law § 1590-c, which makes it a separate legal entity from the City of Utica. The AG cited New York State Chapter v New York State Thruway Authority for the proposition that public-benefit corporations are not subsumed into their creating municipality. So that seat does not count against the § 30(4) cap.

The Commissioner of Public Safety and the Zoning Board of Appeals member, however, both hold city office. They both count. Having both of them on the housing-authority board put Utica over the one-officer limit.

The AG then addressed the practical consequence. The over-the-cap officer was serving in violation of State law, but the AG categorized that person as a de facto officer rather than a void appointment. Under settled law, the actions of a de facto officer remain valid and are not subject to collateral attack. So past board decisions stay good. The municipality must fix the composition going forward.

Currency note

This opinion was issued in 1999. 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 statute cap municipal representation?

To preserve independence of the housing authority from the municipality that created it. A board dominated by city officers can become a rubber stamp for city policy preferences, which undermines the authority's federal-financing role and its ability to advocate for tenants distinct from city government.

What's the difference between a public-benefit corporation and the municipality?

A public-benefit corporation (like a Parking Authority created under Public Authorities Law § 1590-c) is a separate legal entity, with its own staff, debt capacity, and governing board. It is not a city department. The AG's longstanding view, reinforced by the Court of Appeals' ruling in the Thruway case, is that PBC officers are not municipal officers.

How is the "one municipal officer" supposed to be chosen?

The statute does not script the selection. Typically, the mayor or city manager designates the city's representative when there is a vacancy. The municipality has to coordinate to make sure it puts forward only one official at a time.

What about employees, not just officers?

The statute says "official or an employee," so the cap covers both. A municipal employee counts the same as a municipal officer. Two city employees on the board would be the same violation.

What if the second officer steps down voluntarily?

That resolves the violation prospectively. The municipality can then designate a single representative for the seat. The de facto officer doctrine protects the validity of past actions taken while the board was over-composed.

Background and statutory framework

The Public Housing Law was enacted in 1939 to authorize municipal housing authorities that could partner with federal housing programs. Article 2 covers municipal housing authorities, with § 30 governing board composition. The one-officer cap is one of several composition rules designed to give housing authorities operational independence.

Public Authorities Law § 1590-c authorizes municipal parking authorities as public-benefit corporations. The Court of Appeals decision in New York State Chapter v New York State Thruway Authority confirmed the long-standing principle that public-benefit corporations are not subsumed into State or municipal government for general legal purposes.

The de facto officer doctrine is common law. The AG cited 1962 and 1986 informal opinions where the doctrine has been applied to similar over-composition cases. The doctrine protects third parties who interacted with the board in good faith; it does not legitimize the underlying violation.

Citations

• Public Housing Law § 30(4) (housing authority board composition; one municipal official cap).
• Public Authorities Law § 1590-c (parking authorities as public-benefit corporations).
• New York State Chapter, Inc. v New York State Thruway Authority, 88 NY2d 56 (1996) (public-benefit corporations are legally separate from creating government).
• 1962 Op Atty Gen (Inf) 126 and 1986 Op Atty Gen (Inf) 96 (de facto officer doctrine application).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_99-24_pw.pdf

Original opinion text

PUBLIC AUTHORITIES LAW § 1590-c; PUBLIC HOUSING LAW § 30(4). Section 30(4) of the Public Housing Law permits only one municipal official to be a member of that municipality's public housing authority. August 16, 1999 Robert R. Calli, Esq. Utica Municipal Housing Authority P. O. Box 4130 Utica, NY 13504-4130

Informal Opinion
No. 99-24

Dear Mr. Calli:
You have inquired whether the current composition of the Board of Commissioners of the Utica Municipal Housing Authority complies with State law. Your concern is section 30(4) of the Public Housing Law, which provides: Not more than one member [of the Board] of an authority may be an official or an employee of the municipality at any one time. In the event that an official or an employee of the municipality shall be appointed as a member of the authority, 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 authority who is an official of the municipality shall terminate at the expiration of the term of his municipal office. You informed us that currently the Utica Commissioner of Public Safety, a member of the Utica Zoning Board of Appeals and a member of the Utica Parking Authority are members of the Board of the Utica Housing Authority. You have asked whether their membership on the Housing Authority's Board is in violation of section 30(4) of the Public Housing Law. The member of the Utica Parking Authority is not an officer or employee of the City of Utica. The Parking Authority is a public benefit corporation (Public Authorities Law § 1590-c), which is a legal entity separate from the City of Utica (see, New York State Chapter, Inc. v New York State Thruway Authority,

2
88 NY2d 56 [1996]). Therefore, that position would not fall within the restriction established by section 30(4). The Commissioner of Public Safety and the member of the Zoning Board of Appeals, however, are officials of the City of Utica and are subject to the restriction. Under Public Housing Law § 30(4), a housing authority board may include at any one time only one employee or officer of the municipality. A person who serves in both capacities is deemed to be the municipality's representative on the board. The municipal officer or employee may serve on the authority's board during the term of his or her municipal employment. It appears that the Legislature intended that a municipality have only one official representative on the board of a housing authority. Therefore, because two officials of the City of Utica serve on the Utica Housing Authority, there is a violation of section 30(4) of the Public Housing Law. Therefore, a member of the Board of Commissioners of the Utica Municipal Housing Authority has been serving in violation of State law. He has been serving as a de facto, rather than a lawfully appointed officer. See, 1962 Op Atty Gen (Inf) 126; 1986 Op Atty Gen (Inf) 96. We note, however, that under well-established law, the actions of a person who is serving under color of law as a de facto officer are valid and not subject to collateral attack. Id. We conclude that section 30(4) of the Public Housing Law permits only one municipal official to be a member of that municipality's public housing authority. 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