Can a town board member also work as a paid employee of the town housing authority that the town board oversees?

Plain-English summary

A Town of Norfolk board member was hired by the Town of Norfolk Housing Authority as its building administrator. He kept both positions. The town attorney asked whether that was permissible. The AG said no, the positions are incompatible at common law, and the person cannot hold both at the same time.

The reasoning is structural rather than statutory. Public Housing Law § 532 establishes the town housing authority. Under § 30(2), the town board appoints the five housing authority board members. Under § 34, the town board can remove a housing authority board member for inefficiency, neglect, or misconduct, and can suspend a member pending charges. Under § 32(1), the housing authority board hires and supervises authority employees and sets their pay (subject to town board approval).

That creates a circular supervisory chain. The housing authority board would supervise the building administrator. But that same building administrator (wearing his town board hat) would in turn appoint, possibly remove, and approve the salary of the housing authority board members supervising him. The AG concluded that the housing authority board could not impartially supervise an employee who held removal authority over them, and the appearance of impropriety alone was disqualifying.

The opinion also rejects recusal as a fix. Even if the dual officeholder recused himself from town board votes touching the housing authority, the remaining town board members would still be voting to hire, fire, and pay people who supervise their colleague's day job. That is not the kind of arms-length judgment the doctrine of compatible offices protects.

Currency note

This opinion was issued in 2013. 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 is the doctrine of incompatibility of office?

A common-law rule, predating most modern ethics statutes, that prevents one person from holding two public positions when one position has supervisory power over the other or when the duties of the two conflict in any material way. Even where no statute explicitly forbids the combination, the AG and New York courts will treat the positions as legally incompatible.

Why isn't recusal enough to fix the problem?

The AG flagged a structural reason: even after the dual officeholder recuses, the remaining town board members are still in a position where they are voting on the housing authority that supervises their colleague. That coloring of judgment is what the doctrine is designed to prevent. The opinion cited Op. Att'y Gen. (Inf.) No. 99-39 for the same point.

Could the housing authority board ever vote to discipline him as the building administrator?

That was the AG's central concern. Yes, in theory. But the housing authority board members serve at the town board's pleasure. Disciplining an employee who, as a town board member, votes on their own appointment and removal is not impartial supervision. The combination breaks both directions of accountability.

What if the town board member is not paid by the housing authority?

The opinion focuses on the building administrator's status as a paid housing authority employee, but the structural problem (town board votes on housing authority board members; housing authority board supervises the employee) does not depend on compensation. The same incompatibility analysis would apply to any housing authority employment.

What should the dual officeholder actually do?

Resign from one of the two positions. The opinion does not prescribe which one, but the practical answer is whichever is compatible with his other obligations. Holding both is not lawful.

What about housing authority board members? Are they themselves "town board" subordinates?

Yes, in a soft sense. They are appointed and can be removed by the town board, but they are not town employees. The opinion did not separately analyze whether sitting on both the town board and the housing authority board would be incompatible, but the same logic would likely reach that combination too.

Background and statutory framework

The Town of Norfolk Housing Authority is a creature of Public Housing Law § 532. It is governed by a five-member board. Members are not salaried, though they may receive a per diem up to $2,000 annually as set by the housing authority board, plus necessary expenses. Public Housing Law § 32(3).

The control structure: under Public Housing Law § 30(2), the town board appoints housing authority board members. Their terms are staggered, with one member's term expiring each year. Under § 34, the town board may remove a housing authority board member for inefficiency, neglect of duty, or misconduct in office after a public hearing, and may suspend a member pending charges.

The housing authority board's role: under Public Housing Law § 32(1), the housing authority board hires the authority's employees, determines their qualifications and duties, and fixes their compensation (subject to town board approval). The building administrator was such an employee.

The doctrine of incompatibility of office in New York runs through case law (Matter of Held v. Hall, 191 Misc. 2d 427, 433 (Sup. Ct. Westchester Co. 2002), citing Matter of Town of Ramapo v. Watton, 90 Misc. 2d 914, 918 (Sup. Ct. Rockland Co. 1977)) and through long-standing AG opinion practice. The test asks whether the duties of the two positions conflict in such a way that one position has supervisory or appointment power over the other, or whether the combination would create an appearance of impropriety undermining public confidence.

The AG's recusal-doesn't-fix-it principle: Op. Att'y Gen. (Inf.) No. 99-39, cited approvingly in this opinion, held that the impartiality of a town board cannot be assured by removing the dual officeholder from the room when his colleagues are voting on matters tied to his other employment.

Citations

The town housing authority's enabling statute: Public Housing Law § 532. The town board's appointment and removal authority: Public Housing Law §§ 30(2), 34. The housing authority board's hiring and compensation authority: Public Housing Law § 32(1). The board members' compensation rules: Public Housing Law § 32(3). The judicial framing of the incompatibility test: Matter of Held v. Hall, 191 Misc. 2d 427, 433 (Sup. Ct. Westchester Co. 2002), citing Matter of Town of Ramapo v. Watton, 90 Misc. 2d 914, 918 (Sup. Ct. Rockland Co. 1977). On recusal not curing incompatibility: Op. Att'y Gen. (Inf.) No. 99-39.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2013-2_pw.pdf

Original opinion text

Public Housing Law §§ 30(2), 32(1), 32(3), 34, 532

The positions of town board member and building administrator for the local housing authority are incompatible.

April 30, 2013

Eric J. Gustafson
Town Attorney
Town of Norfolk
40 Main Street
Massena, New York 13662

Informal Opinion
No. 2013-2

Dear Mr. Gustafson:

You have requested an opinion about whether a town board member can also serve as building administrator for the local housing authority. You have explained that a town board member recently was hired as a building administrator by the housing authority board members. He currently is holding both positions. As explained below, we are of the opinion that the positions are incompatible and thus he cannot hold both positions at the same time.

The Town of Norfolk Housing Authority was established by Public Housing Law § 532. The Housing Authority is governed by a board that has five members. Id. Housing authority board members are not salaried (but they may receive a per diem, up to $2000 annually as established by the housing authority board, and their necessary expenses). Id. § 32(3).

The town board appoints the housing authority board members. Public Housing Law § 30(2). Housing authority board members' terms are staggered so one member's term ends each year. Id. The town board can remove a member of the housing authority board for inefficiency, neglect of duty, or misconduct in office after a public hearing. Public Housing Law § 34. The town board also can suspend a housing authority board member pending a determination of the charges against him. Id.

The housing authority board hires the Authority's employees, determines their qualifications and duties, and fixes their compensation (subject to the approval of the town board). Public Housing Law § 32(1). The housing authority board members thus exercise these powers over the building administrator who also serves as town board member.

We are of the opinion that the appointment and removal power that the town board exercises over housing authority board members renders the positions of town board member and building administrator for the Authority incompatible. The tenure of the members of the housing authority board depends on the determination of the town board. The housing authority board may be unable to impartially supervise its employee who also serves on the town board and thus wields a portion of the town board's appointment and removal power. At the least, service as both a member of the town board and housing authority employee will create the appearance of impropriety, which should be avoided to maintain public confidence in the integrity of government. Matter of Held v. Hall, 191 Misc. 2d 427, 433 (Sup. Ct. Westchester Co. 2002), citing Matter of Town of Ramapo v. Watton, 90 Misc. 2d 914, 918 (Sup. Ct. Rockland Co. 1977).

Also, we believe that recusal of the housing authority employee from town board discussion and appointment or removal of housing authority board members will not remedy the incompatibility of the positions. When appointing or removing a housing authority board member who takes part in determining the salary and the terms and conditions of their colleague's employment, the impartiality of the remaining town board members would not be free from doubt. See Op. Att'y Gen. (Inf.) No. 99-39 (impartiality of town board in question even with dual officeholder recused).

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
in Charge of Opinions