If a planning board member declares a conflict of interest, do they have to leave the room during deliberations?

Subject

Member must absent himself from the board while the matter is being discussed

Plain-English summary

A member of the Town of Bristol planning board was a real estate broker active in the area of a proposed subdivision before the board. The member announced that he would abstain from voting on the application but planned to remain at the meeting, listen to the discussion, and even participate in deliberations right up to the vote.

The town attorney asked the Attorney General whether sitting through deliberations was enough or whether the member had to leave the room entirely.

The AG concluded that abstaining from the vote was not enough. Once a member declared a conflict of interest in a matter, that member had to absent themselves from the body during the time the matter was before it. The reasoning had two strands. First, a board member's participation in discussion can influence the colleagues who will cast votes, so the recusal must cover deliberation, not just the final tally. Second, even if the member sat silent, simply being in the room after declaring a conflict created an appearance of impropriety in the eyes of the public, which the office had long warned against.

Currency note

This opinion was issued in 1995. 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

Was the member doing anything illegal by staying in the room?

The AG's view was that staying in the room after declaring a conflict violated the recusal duty that flowed from prior opinions on planning board ethics, even though no statute spelled out a physical-departure rule. It was framed as an ethical and appearance-of-impropriety standard rather than a criminal prohibition.

Did the member have to leave for the entire meeting or just for that agenda item?

Just for the matter in which the conflict existed. The AG framed the duty narrowly: absent themselves "from the body during the time that the matter is before it." The member could return for the next agenda item.

What if the member's expertise was actually useful on this application?

The AG did not weigh whether the member's substantive knowledge would help the board. The rule the office articulated was a flat one: once the conflict was declared, the public-confidence concern outweighed any informational benefit from continued participation.

Did the board need to record that the member left?

The opinion did not address minutes or documentation specifically. Best practice in New York municipal boards has long been to note in the minutes when a member discloses a conflict and leaves the room, both to protect the member and to show the public that the recusal was real.

Background

The AG's discussion drew on a thread of earlier informal opinions, including Op Atty Gen (Inf) No. 90-38 and 1988 Op Atty Gen (Inf) 123 and 115, which had held that members with conflicts must recuse from any deliberations or votes on the matter creating the conflict. The 1995 opinion took the next step and made clear that "recuse from deliberations" meant physical departure, not silent presence.

The opinion also reiterates the long-standing standard from 1984 Op Atty Gen (Inf) 86: public officials should avoid even the appearance of impropriety, not just actual financial conflicts, because public confidence in government depends on visible impartiality.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-2_pw.pdf

Original opinion text

A member of a local planning board who has stated that he or
she has a conflict of interests concerning a particular matter
before the board must absent himself from the board during the
time that the matter is before it.

January 24, 1995

Richard S. Mayberry, Esq.
Town Attorney
Town of Bristol
2220 South Clinton Avenue
Rochester, NY 14618

Informal Opinion
No. 95-2

Dear Mr. Mayberry:
You have indicated that a member of the planning board, due
to his business activity as a real estate broker in the area of a
proposed subdivision currently before the planning board for
approval, has indicated that he must abstain from voting on the
application. The board member, however, has indicated that he
intends to continue to sit as a member of the planning board
during the presentation and consideration of the application and
fully intends to participate in the discussion of the application
up to the time of vote. You have asked whether the board member,
upon declaring his intention to abstain because of the conflict
of interests, is required to remove himself from the board's
proceedings and deliberative process on this pending application.
In prior opinions of the Attorney General, we have
emphasized that public officials should avoid circumstances which
compromise their ability to make impartial judgments solely in
the public interest. 1984 Op Atty Gen (Inf) 86. Even the
appearance of impropriety should be avoided in order to maintain
public confidence in government. Ibid.
We have found that members of local bodies, including
planning boards, with conflicts of interests in a particular
application or matter before the body, should recuse themselves
from taking any actions with respect to that matter or
application. Op Atty Gen (Inf) No. 90-38; 1988 Op Atty Gen (Inf)
123, 124; 1988 Op Atty Gen (Inf) 115, 117. We have stated that
members with conflicts of interests must recuse themselves from
participating in any deliberations or votes concerning the
application creating the conflict. Op Atty Gen (Inf) No. 90-38.
The board member's participation in deliberations has the
potential to influence other board members who will exercise a
vote with respect to the matter in question. Further, we believe
that a board member with a conflict of interests should not sit
with his or her fellow board members during the deliberations and

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action regarding the matter. The mere presence of the board
member holds the potential of influencing fellow board members
and additionally, having declared a conflict of interests, there
would reasonably be an appearance of impropriety in the eyes of
the public should the member sit on the board.
Thus, it is our view that once a board member has declared
that he or she has a conflict of interests in a particular matter
before the board, that the board member should recuse him or
herself from any deliberations or voting with respect to that
matter by absenting himself from the body during the time that
the matter is before it.
We conclude that a member of a local planning board who has
stated that he or she has a conflict of interests concerning a
particular matter before the board must absent himself from the
board during the time that the matter is before it.
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