Can a New York town's confidential assistant to the supervisor also serve as a member of the town planning board?

Plain-English summary

The Town of Stony Point asked whether one person could serve simultaneously as the confidential assistant to the town supervisor and as a member of the town planning board. The AG concluded yes.

The confidential assistant under Town Law § 29(15) is designated by the supervisor, is subordinate to the supervisor, and serves at his pleasure. The supervisor handles administrative and financial functions under Town Law §§ 29 and 125 and is also a member of the town board (§ 60(1)). The planning board, created and staffed by the town board under § 271, develops and reviews the town's comprehensive plan and may have site-plan, subdivision, and special-use authority under §§ 274-a, 274-b, and 276.

Two angles could have produced conflict. First, Town Law § 271(3) prohibits town board members from sitting on the planning board, reflecting the common-law rule against a board appointing its own members. But that rule applies to the supervisor (who is a town board member); it doesn't reach his confidential assistant, who has no appointment or removal authority over the planning board. Second, the town board has authority to remove a planning board member for cause. The assistant, however, lacks any role in such removal decisions and would not have to recuse himself in his confidential-assistant capacity.

The AG drew an analogy to its 1986 opinion (Op. Atty. Gen. (Inf.) No. 86-3) finding administrative assistant and zoning board of appeals member compatible. The State Comptroller had also opined (Op. State Compt. No. 62-20) that secretary to the town board and planning board member were compatible. Both reinforced the conclusion that the supervisor's confidential assistant, who has no independent appointment power, could serve on the planning board without conflict.

The opinion also noted that if the Stony Point supervisor served on a county legislative body that appointed a regional planning board, additional recusal concerns might arise (Op. Atty. Gen. (Inf.) No. 97-22). Rockland County's legislative body is not a board of supervisors, so County Law § 150 was not implicated and the question did not require resolution.

Currency note

This opinion was issued in 2002. 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

Q: Why didn't the prohibition on town board members serving on the planning board reach the supervisor's assistant?
A: The rule in Town Law § 271(3) is rooted in the common-law principle that a board cannot appoint its own members. The supervisor is a town board member and is barred. The confidential assistant is not a town board member; he or she has no appointment authority. The structural problem is absent.

Q: What about the town board's authority to remove planning board members?
A: The town board can remove planning board members for cause. If the supervisor were on the planning board, a removal proceeding could put him in a conflict with his colleagues. The AG's prior analysis (Op. Atty. Gen. (Inf.) No. 89-55) addressed that. For the confidential assistant, no such issue arises because he does not vote on removals.

Q: Did the AG see any conflict between the assistant's fiscal duties and planning board service?
A: No. The supervisor's fiscal duties under §§ 29 and 125 mainly involve control and recordkeeping of town funds. Planning board duties under § 271 do not include auditing. The two domains do not overlap in a way that produces conflict for the assistant.

Q: Could a member of a county legislature serving as a town supervisor face a different rule?
A: Potentially. A 1997 AG opinion (No. 97-22) addressed recusal for a county legislator who also served on a town planning board, where the county legislature appointed members of a county or regional planning board that reviewed town planning board decisions. The AG flagged the issue, but Rockland's legislative body is not a board of supervisors, so it did not control.

Q: What does County Law § 150 do?
A: Section 150 defines the membership of a "county board of supervisors" as the supervisors of the towns and cities within the county. The AG cited it to explain that Rockland's legislative body, not being a board of supervisors, fell outside § 150's scope.

Background and statutory framework

The opinion turns on three legal frameworks:

• Town supervisor's role. Town Law § 60(1) makes the supervisor a member of the town board. Town Law § 29 and § 125 list the supervisor's administrative and fiscal duties. Town Law § 29(15) provides for a confidential assistant who serves at the supervisor's pleasure.

• Planning board structure. Town Law § 271 governs town planning boards. Subdivision (3) bars town board members from sitting on the planning board. The planning board develops the comprehensive plan under § 272-a, may approve site plans (§ 274-a), subdivisions (§ 276), and special use permits (§ 274-b), and may have advisory review under § 271(14).

• Incompatible offices doctrine. People ex rel. Ryan v. Green, O'Malley v. Macejka, and Matter of Dupras v. County of Clinton set the test: two positions are incompatible if one is subordinate to the other or if there is an inherent inconsistency. The AG had to determine that neither factor applied to the supervisor's assistant and the planning board membership.

The AG's analysis treats compatibility as the default and looks for specific conflict triggers. None were present here.

Citations and references

Statutes:

• County Law § 150 (county board of supervisors composition)
• Town Law § 29 (town supervisor duties; confidential assistant)
• Town Law § 60(1) (supervisor as town board member)
• Town Law § 125 (supervisor's fiscal duties)
• Town Law § 271 (planning board structure; § 271(3) bar on town board members)
• Town Law § 272-a(4) (comprehensive plan)
• Town Law § 274-a(2) (site plan authority)
• Town Law § 274-b(2) (special use permits)
• Town Law § 276(1) (subdivisions)

Cases:

• O'Malley v. Macejka, 44 N.Y.2d 530 (1978) (incompatibility test)
• People ex rel. Ryan v. Green, 58 N.Y. 295 (1874) (common law incompatibility)
• Matter of Dupras v. County of Clinton, 213 A.D.2d 952 (3d Dep't 1995) (rule applies to office plus employment)
• Wood v. Town of Whitehall, 120 Misc. 124 (Sup. Ct.), aff'd 206 App. Div. 786 (3d Dep't 1923) (board cannot appoint its own member)
• Haller v. Carlson, 42 A.D.2d 829 (4th Dep't 1973) (officer vs. employee distinction)

Prior AG and Comptroller opinions:

• Op. Atty. Gen. (Inf.) No. 86-3 (administrative assistant to town supervisor and ZBA membership)
• Op. Atty. Gen. (Inf.) No. 89-55 (planning board member appointed to town board)
• Op. Atty. Gen. (Inf.) No. 97-22 (county legislator and town planning board)
• Op. Atty. Gen. No. 97-F7 (officer vs. employee distinction)
• Op. State Compt. No. 62-20 (secretary to town board and planning board member compatible)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2002-16_pw.pdf

Original opinion text

COUNTY LAW § 150; TOWN LAW §§ 29, 60(1), 125, 271, 272-a(4), 274-a(2), 274-b(2), 276(1).

The positions of confidential assistant (secretary) to the town supervisor and member of the town planning board are compatible.

November 5, 2002

Frank J. Phillips, Esq.
Town Attorney
Town of Stony Point
74 East Main Street
Stony Point, New York 10980

Informal Opinion
No. 2002-16

Dear Mr. Phillips:

You have asked whether an individual may serve simultaneously as the confidential assistant to the town supervisor and as a member of the town planning board. We conclude that the two positions are compatible.

Background

You have advised that the confidential assistant performs the function of secretary to the town supervisor. As required by state law, a confidential secretary is designated by the town supervisor and, thus, is subordinate to and serves at the pleasure of the town supervisor. See Town Law § 29(15). The duties of the town supervisor include a variety of administrative and financial functions. See Town Law §§ 29, 125. The town supervisor also serves as a member of the town board. Town Law § 60(1).

A town board may elect to create a town planning board and is responsible for appointing the members of such board. Town Law § 271(1). Planning board members are subject to removal by the town board for cause. Id. The planning board is responsible for developing or reviewing the town's comprehensive plan, which forms the basis for development in the town. See Town Law §§ 271(14)(b), 272-a(4). The planning board may also be given authority to approve site plans and subdivision plats and to issue special use permits. See id. §§ 274-a(2), 274-b(2), 276(1). Additionally, the planning board may be responsible for reviewing other matters before the taking of final action by town officials. See id. § 271(14)(a).

Analysis

In the absence of a constitutional or statutory prohibition against dual officeholding, one person may hold two offices simultaneously unless they are incompatible. Two offices are incompatible if one is subordinate to the other or there is an inherent inconsistency between the two offices. See O'Malley v. Macejka, 44 N.Y.2d 530, 535 (1978); People ex rel. Ryan v. Green, 58 N.Y. 295, 304-05 (1874); Matter of Dupras v. County of Clinton, 213 A.D.2d 952, 953 (3d Dep't 1995). Although in other contexts the differences between a public office and position of employment may be significant, the common law rules regarding dual officeholding apply equally to an office, which generally involves the exercise of sovereign authority and discretion, and a position of employment. See Matter of Dupras v. County of Clinton, 213 A.D.2d at 953.

We have not identified any per se constitutional or statutory prohibition on an individual's serving as a confidential assistant to the town supervisor and as a member of the town planning board. We note that under Town Law § 271(3), a member of the town board (including therefore the town supervisor) may not serve as a member of the planning board. This statutory prohibition apparently is based on the common law rule that prohibits a board from appointing one of its own members to a public office. See Op. Atty. Gen. (Inf.) No. 86-3 (construing similar provision in Town Law § 267(1), which prohibits town board members from serving on zoning board of appeals) (citing Wood v. Town of Whitehall, 120 Misc. 124 (Sup. Ct.), aff'd 206 App. Div. 786 (3d Dep't 1923)). Similarly, the authority of the town board to remove a member of the planning board would create a potential conflict between these two board positions, which would require that the affected board member recuse him or herself from any such removal proceedings. See Op. Atty. Gen. (Inf.) No. 89-55. However, the conflicts created by the town board's appointment and removal authority over planning board members would not arise with respect to the position of confidential assistant to the town supervisor. The confidential assistant would not have appointment and removal authority over him or herself as a planning board member; rather, the individual would be subject to the supervision and appointment and removal authority of the town supervisor in both positions.

Inasmuch as there is no statutory bar prohibiting one individual from holding these two positions, the question is whether the duties of the two positions are compatible. We have previously concluded that there is no conflict between the duties of town board member and member of the town planning board. Prior to the enactment of the statutory bar prohibiting town board members from serving as members of the town planning board, we addressed the issue whether a current member of the town planning board could be appointed to fill a vacancy on the town board. See Op. Atty. Gen. (Inf.) No. 89-55. Although noting that the individual would not be eligible for reappointment to the planning board if he remained a member of the town board (because of the rule prohibiting a board from appointing one of its own members to a public office) and that the individual should recuse him or herself from any proceedings to remove a planning board member, we concluded that because a town board may perform the planning functions itself if it does not create a planning board, there is no incompatibility between the duties of planning board member and town board member. See id. Thus, with respect to those duties of the confidential assistant pertinent to the supervisor's role as a member of the town board, there is no conflict between that position and the position of town planning board member. See also Op. State Compt. No. 62-20 (concluding that the positions of secretary to the town board and planning board member are compatible).

Nor does there appear to be any inconsistency between the positions of confidential assistant to the supervisor and planning board member with respect to the other duties of the town supervisor, which involve generally the control and recordkeeping of town funds. See Town Law §§ 29, 125. The confidential assistant's involvement with the supervisor's fiscal duties would not conflict with that individual's planning board duties, as planning board members do not perform auditing or fiscal functions.

Finally, while we have previously concluded that a member of a county legislature who also serves as a town planning board member should recuse herself from appointing members of any county or regional planning board that reviews decisions of the town planning board, see Op. Atty. Gen. (Inf.) No. 97-22, you have indicated that the Stony Point town supervisor does not serve as a member of the Rockland County legislative body, since that legislative body is not a board of supervisors. Cf. County Law § 150 (supervisors of towns and cities within county constitute county board of supervisors). Thus, there is no question here as to the duties of the town supervisor's confidential assistant with respect to the supervisor's role as a member of any county legislative body. In any event, the confidential assistant would appear to be insulated from any incompatibility or conflict arising from the town supervisor's appointment and removal authority over county or regional planning board members, should such authority exist, because the assistant himself lacks such authority.

In an analogous context, we have concluded that the positions of administrative assistant to the town supervisor and member of the town zoning board of appeals are compatible, as long as the zoning board of appeals does not review decisions of the town board. See Op. Atty. Gen. (Inf.) No. 86-3. We likewise conclude that the positions of confidential assistant to the town supervisor and member of the town 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,

LAURA ETLINGER
Assistant Solicitor General
In Charge of Opinions

Footnote: See, e.g., Haller v. Carlson, 42 A.D.2d 829, 829 (4th Dep't 1973) (distinguishing public officer and public employee for purposes of Public Officers Law); Op. Atty. Gen. No. 97-F7 (same).