Can a town planning board member do paid soil-boring work that ends up in subdivision maps the board reviews?

Subject

Town planning board member and subcontractor for applicant

Plain-English summary

The Town of Southold had a planning board member who worked privately as a geologist. He performed soil borings at about $100 each, typically hired by engineers, architects, surveyors, or sometimes directly by developers. The boring data was used in subdivision maps and site plans, many of which would ultimately come before the planning board for review under SEQRA or for siting approvals.

The town attorney asked whether the planning board member faced a conflict of interest and whether recusal was the cure.

The AG concluded the situation was worse than a discretionary conflict: General Municipal Law § 805-a(1)(c) flatly prohibits a municipal officer or employee from receiving (or agreeing to receive) compensation for services rendered in relation to any matter before the agency on which they serve. The statute's whole point is to keep municipal officers from privately preparing materials that they will then officially review. Recusal does not cure a § 805-a violation, because the violation is the acceptance of compensation itself, not the participation in the agency vote.

The AG flagged the broad reach. The member did not have to be hired by the developer directly; if he prepared data that ended up in materials before the planning board, the statutory line was crossed. The $100 fee level did not save it. And the town's silence on the issue in its local ethics code did not help, because § 805-a is a state statute that applies regardless of local code.

The AG's recommendation was implicit but clear: the member needed to stop accepting paid boring work on any project that might come before the planning board, or step off the planning board.

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

Why isn't recusal enough for this kind of conflict?

Because § 805-a is structured as a prohibition on accepting compensation, not as a rule about voting. Recusal cures the voting problem but leaves the compensation problem standing. The AG draws a sharp line: when a statute prohibits the underlying compensation, recusal is irrelevant.

What if the planning board member didn't know the project would come before the board?

The opinion does not address scienter explicitly, but § 805-a's language is broad enough that a reasonable possibility of the matter coming before the agency is enough. A geologist whose data routinely ends up in subdivision maps has constructive knowledge that the work will surface before the planning board.

What's the difference between this and § 805-a(1)(a), the gift rule?

Section 805-a(1)(a) is the gift acceptance prohibition ($75 threshold, intent or appearance of influence). Section 805-a(1)(c) is the compensation-for-services prohibition, which is broader: any agreement to be compensated for services on a matter before the member's agency is prohibited, regardless of dollar amount. The compensation prohibition does not require any showing of intent to influence; it is a structural rule.

What about the developer hiring the geologist directly?

Same outcome. The AG opinion treats the route to the work as irrelevant: whether the developer hires the member directly, or an engineer subcontracts to him, or the architect routes the data through, the prohibition applies if the data ends up in a matter before the planning board.

Can the geologist work on projects in other towns?

Yes. Section 805-a's prohibition is about matters before the member's own municipal agency. Work in a different jurisdiction, where the geologist holds no public office, is unaffected.

Statutory framework

General Municipal Law § 805-a is the conflict-of-interest statute for local government officers and employees. Subsection (1)(c) provides:

No municipal officer or employee shall: ... receive, or enter into any agreement, express or implied, for compensation for services to be rendered in relation to any matter before any municipal agency of which he is an officer, member or employee.

The statute is structured as a flat prohibition rather than a balancing test, which is why recusal does not cure a violation. The AG opinion treats this provision as the controlling rule and the broader common-law appearance-of-impropriety analysis as a backstop.

The town's local ethics code (required under General Municipal Law § 806) had not addressed this scenario. The AG opinion makes clear that the state statute applies regardless: local silence does not create a safe harbor.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-14_pw.pdf

Original opinion text

GENERAL MUNICIPAL LAW § 805-A(1)(c).
A member of a town planning board may not be compensated or
enter into an agreement to be compensated for the preparation of
test borings, date from which would be incorporated into
subdivision maps and site plans to be presented to the planning
board for review. The statutory prohibition does not allow
recusal as an appropriate remedy.
March 1, 1995

Laury L. Dowd, Esq.
Town Attorney
Town of Southold
P. O. Box 1179
Southold, NY 11971

Informal Opinion
No. 95-14

Dear Ms. Dowd:
You have asked whether a member of the town planning board
who also is a geologist in the private sector has conflicts of
interests under specified circumstances.
You have indicated that the member performs soil borings
throughout the area, primarily in response to requests from
engineers, architects and surveyors. On occasion, this geologist
is hired directly by the developer. The average fee for a boring
is $100. The boring provides data concerning the depth of water
and the nature of soil and materials encountered. This data is
placed on subdivision maps and site plans, many of which are
ultimately reviewed by the town planning board in the course of
evaluating the SEQRA aspects of the project or in siting project
facilities.
You inquire whether it is a conflict of interests for this
individual to sit on the planning board in review of a
subdivision map or site plan containing data derived from borings
he prepared in his private capacity as a geologist. Is it
necessary for this planning board member to recuse himself
concerning these applications? You indicate that the town's
ethics code is silent regarding this subject.
State law prohibits a municipal officer or employee from
receiving or entering into any agreement for compensation for
services to be rendered in relation to any matter before any
municipal agency of which he is an officer, member of employee.
General Municipal Law § 805-a(1)(c). In rendering compensated

2
services to do test borings, the results of which are
incorporated into subdivision maps and site plans presented to
the planning board for review and approval, we believe the
subject planning board member would be in violation of the above
provision. The obvious purpose of section 805-a(1)(c) is to
prevent the conflict of interests that would result if a
municipal officer was placed in the position of reviewing an
application presented by him, or which he prepared in whole or in
part.
We conclude that a member of a town planning board may not
be compensated or enter into an agreement to be compensated for
the preparation of test borings, date from which would be
incorporated into subdivision maps and site plans to be presented
to the planning board for review. The statutory prohibition does
not allow recusal as an appropriate remedy.
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