Can a planning board member also work as a full-time computer services employee for the same town?

Subject

Planning board member and full-time town IT employee are compatible

Plain-English summary

A member of the Town of Ogden planning board had been offered a full-time town job providing computer services. The town attorney asked whether prior AG opinions had ever held that a full-time town employee was barred from serving on the planning board. The AG had not found such an opinion.

The AG applied the standard New York dual-position analysis (Op Atty Gen [Inf] No. 92-35). Two positions are incompatible if one is subordinate to the other (you cannot be your own boss) or if there is a conflict between the duties. Neither applied here. The IT employee was not subordinate to the planning board, and the planning board (charged with master plan development, advisory functions, and approval of site and subdivision plans) did not overlap with computer services responsibilities. The planning board also met in the evening, so there was no time conflict.

The opinion picked up a related question: the town board was considering an amendment to the town code that would bar all full-time town employees, and all town board members, from serving on the zoning board of appeals or the town planning board. The AG flagged that state law already prohibits town board members from serving on the planning board or ZBA (Town Law §§ 267(3) and 271(3)). For the broader prohibition on full-time employees, the AG cited Op Atty Gen (Inf) No. 91-1: municipalities can enact local laws barring various dual office holding under their home-rule authority over their property, affairs, government, and the qualifications of officers and employees (Municipal Home Rule Law § 10(1)(i) and (1)(ii)(a)(1)). But the AG added a caveat: such broad prohibitions should be premised on a finding by the town that the dual office holding would be incompatible or not in the public interest. The town board should think it through before passing it.

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 is this case different from the 1995-12 city council/firefighter incompatibility opinion?

The 1995-12 opinion turned on the council's line-item budget power over the firefighter's pay, which made the conflict structural and recurring. Here, the planning board has no power to set IT employee compensation. The two roles are functionally separate, so no structural conflict exists.

Could a planning board member ever vote on a matter involving the town IT department?

Probably not very often, given the planning board's focus on land use. If a matter came up where IT was a stakeholder (e.g., siting of a town facility that included an IT operations center), conventional recusal practice would apply. That kind of occasional conflict is exactly what recusal handles cleanly.

Why did the AG flag the proposed broad code amendment?

Local governments often draft sweeping prohibitions on dual office holding without articulating why the prohibition is needed. The AG's gentle nudge is to make the public-interest case explicitly. A vague prohibition that catches harmless combinations (like this one) wastes volunteer talent without solving any actual problem.

What does Town Law already say about town board members on planning/ZBA?

Town Law §§ 267(3) and 271(3) prohibit town board members from serving simultaneously on the town planning board or zoning board of appeals. That is a statutory ban for those specific combinations. The proposed local law would just extend the ban to a broader set of overlaps.

Does the time-of-meeting matter to compatibility?

The AG mentions it almost in passing: planning boards meet in the evening, so there is no time conflict with a full-time day job. Time-conflict analysis is part of the practical inquiry, but it does not by itself create or defeat compatibility. The legal test is subordination and inherent inconsistency of duties.

Statutory framework

Town Law § 272-a (master plan), § 274 (advisory functions), § 274-a (site plan review), and § 276 (subdivision approval) describe the planning board's substantive responsibilities. Town Law §§ 267(3) and 271(3) bar town board members from serving on the planning board or ZBA.

Municipal Home Rule Law § 10(1)(i) and (1)(ii)(a)(1) provide the home-rule authority for a town to enact local laws on its property, affairs, government, and on the qualifications of its officers and employees.

The common-law subordination/inherent-inconsistency test (Ryan v Green, 58 NY 295 [1874]) is the default rule when statutes do not resolve dual-position questions.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-22_pw.pdf

Original opinion text

MUNICIPAL HOME RULE LAW § 10(1)(i) and (1)(ii)(a)(1); TOWN LAW
§§ 267(3), 271(3), 272-a, 274, 274-a, 276.
There is no incompatibility between serving on the planning
board and holding a position of employment providing computer
services in the town. While a town might enact a local law
prohibiting the simultaneous holding of various positions, a
finding should first be made that the enactment is in the public
interest.
April 26, 1995

Daniel G. Schum, Esq.
Town Attorney
Town of Ogden
269 Ogden Center Road
Spencerport, NY 14559-2024

Informal Opinion
No. 95-22

Dear Mr. Schum:
You have indicated that a member of the town planning board
has been interviewed and found acceptable for full time
employment as a town employee. The duties of the employment
position are to provide computer services to the town. The town
planning board has responsibility for development of the master
plan, forming the basis for development in a town (Town Law
§ 272-a); if authorized by the town board, it advises other town
departments and officers prior to the taking of action (id.,
§ 274) and may be given the responsibility to approve site plans
(id., § 274-a) and subdivision plans (id., § 276). You have
asked whether there are any Attorney General opinions finding
that a full time employee of a town is precluded from also being
a member of the town planning board.
I have found no such opinion. Findings of incompatibility,
precluding a person from holding two positions, are based on a
review of the specific powers and duties of the two positions.
Op Atty Gen (Inf) No. 92-35. One position may not be subordinate
to the other; that is, you cannot be your own boss. Id.
Additionally, two positions are incompatible if there is a
conflict between the duties of the positions. Id. The specific
employment position you have described and the planning board
position would not appear to fall within either of these
categories. Additionally, the planning board meets during the
evening, thus creating no time conflict for the employee.

You have indicated also that the town board has proposed an
amendment to its code to provide that no full time employee of
the town nor any member of the town board can be a member or
chairperson of either the zoning board of appeals or the town
planning board. First, we note that State law already prohibits

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town board members from serving on the town planning board or the
town zoning board of appeals. Id., §§ 267(3), 271(3). In a
prior opinion of this office, we found that a local government is
authorized to enact a local law prohibiting the dual holding of
various local positions. Op Atty Gen (Inf) No. 91-1. We
reasoned that such a local law is authorized under a
municipality's authority to adopt and amend local laws not
inconsistent with the Constitution or any general law, in
relation to its property, affairs or government; and in relation
to the powers, duties and qualifications of its officers and
employees. Municipal Home Rule Law § 10(1)(i) and (1)(ii)(a)(1).
We also stated that the presumed basis for the local law is a
finding by the municipality that such dual office holding would
be incompatible or not in the public interest. Thus, prior to
enacting such a broad prohibition, we suggest that the town board
consider the public interest to be served by the legislation.
We conclude that there is no incompatibility between serving
on the planning board and holding a position of employment
providing computer services in the town. While a town might
enact a local law prohibiting the simultaneous holding of various
positions, a finding should first be made that the enactment will
be in the public interest.
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