Can a New York county legislature appoint one of its own members to the county planning commission?

Plain-English summary

A Schuyler County legislator wanted appointment to the County Planning Commission. The Planning Commission is filled by the County Legislature. The legislator proposed to recuse from the vote on his own appointment. The County Attorney asked the AG whether that cleaned up the conflict enough to make the appointment lawful.

The AG said no. The bar comes from a longstanding rule of public policy, articulated by the Third Department in Wood v Town of Whitehall in 1923 and reaffirmed by the Court of Appeals in Macrum v Hawkins (1933) and the Second Department in Matter of Brenner v Vines (1970): a governing body cannot appoint one of its own members to a public office or position of employment. The rule applies regardless of whether the appointee votes on his own appointment.

Wood's reasoning is worth reading in full because it captures the policy:

When public officers, such as the members of a town board, are vested by the Legislature with power of appointment to office, a genuine responsibility is imposed. It must be exercised impartially, with freedom from a suspicion of taint or bias which may be against the public interest. An appointing board cannot absolve itself from the charge of ulterior motives when it appoints one of its own members to an office. It cannot make any difference whether or not his own vote was necessary to the appointment. The opportunity improperly to influence the other members of the board is there. No one can say in a given case that the opportunity is or is not exercised . . .. This is the possibility, which the law should remove by determining such appointments to be illegal.

The AG had applied the same doctrine in Op Atty Gen (Inf) No. 95-34 to a similar self-appointment situation. Recusal does not solve the problem because it does not eliminate the appearance of inside influence among the appointee's colleagues.

This is one of the strictest rules in New York municipal ethics law. It is structural and absolute: the appointment is illegal regardless of how clean the procedural mechanics look from the outside.

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 isn't recusal enough?

Because the conflict is about influence, not just voting. A sitting legislator who is also the candidate for appointment can lobby colleagues, trade votes on other matters, or shape the deliberation in ways that recusal does not address. Wood explicitly held that whether the appointee's own vote is necessary to the appointment is irrelevant.

Does the legislator have to resign first?

Yes. The standard route, when a sitting legislator wants the planning commission seat, is to resign from the legislature first, with the appointment then coming after. Or, alternatively, wait until the legislative term ends and accept the appointment as a former legislator.

Does this apply to all appointments by all boards?

The doctrine applies whenever a governing body holds appointment authority. Town boards appointing town officers, village boards appointing village officers, county legislatures appointing county officers, all face the same constraint when the appointee is a sitting member of the appointing body.

What if the planning commission is appointed by the county executive, not the legislature?

The doctrine targets the appointing body. If the county executive is the appointing authority, a sitting legislator can be appointed without triggering the self-appointment rule. The conflict arises only when the body acts on its own member.

What if the position is unpaid?

The rule applies to both paid and unpaid positions. The opinion does not distinguish based on compensation. The public-policy concern about the integrity of the appointment process applies equally either way.

Background and statutory framework

The self-appointment doctrine in New York is judge-made, not statutory. Wood v Town of Whitehall is the foundational decision. The Court of Appeals in Macrum v Hawkins reinforced the doctrine. The Second Department in Brenner v Vines applied it to a similar fact pattern.

The doctrine is sometimes confused with the conflict-of-interest provisions of General Municipal Law Article 18, but it is structurally different. Article 18 is about contractual interests; the self-appointment rule is about appointment authority. The two analyses run in parallel.

The AG has applied this doctrine consistently in informal opinions. Op Atty Gen (Inf) No. 95-34 (cited in the 1999 opinion) is a direct precedent.

Citations

• Wood v Town of Whitehall, 120 Misc 124 (Sup Ct Washington Co.), affd, 206 App Div 786 (3d Dept 1923) (foundational case on self-appointment bar).
• Macrum v Hawkins, 261 NY 193 (1933) (Court of Appeals affirmance of self-appointment doctrine).
• Matter of Brenner v Vines, 35 AD2d 536 (2d Dept 1970) (applying self-appointment bar).
• Op Atty Gen (Inf) No. 95-34 (prior AG opinion applying the doctrine; recusal does not cure).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_99-38_pw.pdf

Original opinion text

Opn. No. 99-38
The Schuyler County Legislature may not appoint one of its members to the County Planning
Commission.
December 24, 1999
James P. Coleman, Esq.
County Attorney
Schuyler County
105 Ninth Street, Unit 5
Watkins Glen, NY 14891

Informal Opinion
No. 99-38

Dear Mr. Coleman:
You have asked whether a member of the Schuyler County Legislature may also serve on the
County Planning Commission. You note that members of the commission are appointed by the County
Legislature and suggest that the legislator seeking appointment would recuse himself from voting on his
own appointment.
It is against public policy for a governing body or public board to appoint one of its own members
to a public office or position of employment. Wood v Town of Whitehall, 120 Misc 124 (Sup Ct
Washington Co.), affd, 206 App Div 786 (3d Dept 1923). See also, Macrum v Hawkins, 261 NY 193
(1933); Matter of Brenner v Vines, 35 AD2d 536 (2d Dept 1970). In Wood, the court stated:
When public officers, such as the members of a town board, are vested by the
Legislature with power of appointment to office, a genuine responsibility is imposed. It
must be exercised impartially, with freedom from a suspicion of taint or bias which may be
against the public interest. An appointing board cannot absolve itself from the charge of
ulterior motives when it appoints one of its own members to an office. It cannot make any
difference whether or not his [the appointee's] own vote was necessary to the appointment.
The opportunity improperly to influence the other members of the board is there. No one
can say in a given case that the opportunity is or is not exercised . . .. This is the possibility,
which the law should remove by determining such appointments to be illegal. 120 Misc at
125.
This analysis applies to the situation you describe. See, Op Atty Gen (Inf) No. 95-34. Recusal would not
alter this analysis.
We conclude that the Schuyler County Legislature may not appoint one of its members to the
County Planning Commission.
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 Solicitor General
In Charge of Opinions