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. It cited Wood v Town of Whitehall and two other cases for the public policy rule that a governing body or public board may not appoint one of its own members to a public office or position of employment. The rule applies even if the proposed appointee does not vote on the 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 [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.

The AG also cited Op Atty Gen (Inf) No. 95-34 and concluded that recusal would not change its analysis.

For the proposed Schuyler County appointment, the legislator's recusal would not permit the legislature to appoint its own member.

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?

The AG quoted Wood's concern about the opportunity to influence other members of the appointing body. Wood said it makes no difference whether the appointee's vote was necessary, and the AG said recusal would not change the result.

Did the AG discuss resignation before appointment?

No. The opinion decides only whether the County Legislature may appoint one of its sitting members to the County Planning Commission. It does not assess appointment after resignation or after a term ends.

Does this apply to all appointments by all boards?

The AG states a general rule against a governing body or public board appointing one of its own members to a public office or position of employment. Its specific conclusion concerns the Schuyler County Legislature and County Planning Commission.

Did the AG decide whether a county executive could appoint the legislator?

No. The opinion describes a commission whose members are appointed by the County Legislature. It does not analyze appointment by a county executive or any other appointing authority.

What if the position is unpaid?

The AG describes the rule as covering appointment to a public office or position of employment. It does not analyze whether compensation would change the answer in another situation.

Background and statutory framework

The AG bases its analysis on Wood v Town of Whitehall and cites two other cases. It does not discuss a statute governing this appointment.

The question was whether recusal would allow a county legislator to receive an appointment from the same legislature. The AG said it would not.

The opinion cites Op Atty Gen (Inf) No. 95-34 in applying Wood's analysis to the proposed appointment.

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) (cited by the AG on self-appointment).
• Matter of Brenner v Vines, 35 AD2d 536 (2d Dept 1970) (cited by the AG on self-appointment).
• 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