Can a NY village board reappoint one of its own members as the village's building and bingo inspector?

Subject

Village trustee and building and bingo inspector are incompatible

Plain-English summary

The Village of Gowanda's existing building and bingo inspector was elected to the village board of trustees. The village attorney asked whether the board could then reappoint him to a new term as building and bingo inspector.

The AG identified two reasons the combination was not permissible.

First, incompatibility under Ryan v Green. The building inspector proposes building permits, which are transmitted to the village board for final approval. The inspector also makes recommendations to condemn structures, also transmitted to the village board. So the inspector's official actions are reviewed and approved or rejected by the village board. When the inspector is also a member of the village board, the inspector's actions are being reviewed by a body that includes himself. The conflict is inevitable and recurring, not occasional, so recusal is not an effective remedy. The offices are incompatible at common law.

The AG did not need to reach the separate question of whether the inspector's duties give the position "officer" status that would trigger Village Law § 3-300(3)'s flat ban on simultaneously holding a village elective office and a village appointive office. Incompatibility was enough.

Second, the self-appointment problem. Even if the offices were compatible (they are not), the village board could not appoint one of its own members to a position. Wood v Town of Whitehall, 120 Misc 124 (1923), explained the public-policy rule: when a board has appointment power, the public is entitled to expect that the board exercise it impartially. An appointing board cannot escape the charge of ulterior motives when it appoints one of its own. The opportunity to improperly influence other members is present whether or not the member-being-appointed actually casts a vote. Even recusal does not cure it, because the influence on colleagues is built into the institutional relationship. The Court of Appeals reinforced this in Macrum v Hawkins, 261 NY 193 (1933), and the Second Department followed in Matter of Brenner v Vines, 35 AD2d 536 (2d Dept 1970). The rule applies to offices and to positions of employment alike (1987 Op Atty Gen [Inf] 167).

So even if some hypothetical analysis made the offices compatible, the board's reappointment would fail for self-appointment reasons.

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

What's the broader rule about boards appointing their own members?

It is a long-standing public-policy rule under New York case law: an appointing body cannot fill an appointive position with one of its own members. The reason is structural: even with recusal, the board cannot honestly say its decision was free from the influence of having a colleague seek the position. The rule applies whether the appointment is to an office or to a paid employment position.

Could the trustee resign from the board first, then accept the appointment from the new board?

Yes, that's the standard workaround. Once the trustee is no longer on the board, the board can appoint him to the inspector position without running into the self-appointment rule. The compatibility problem (inspector's work being reviewed by the board) would still bar simultaneous service, but the trustee resigning solves both issues.

Did the AG resolve the public-officer status question?

No. The AG deliberately avoided deciding whether the building and bingo inspector qualified as a "public officer" with the indicia listed in Op Atty Gen (Inf) 92-47 (cited as attached to this opinion). Because Village Law § 3-300(3) prohibits simultaneously holding an elective village office and an appointive village office (if the appointive position is an "office"), the answer to that question would have provided an independent basis. But incompatibility was enough on its own.

Why are the building inspector's duties reviewed by the board?

Because the village's governance structure routes major permits and condemnations through the board for final approval. Many villages do this so that the board, as the elected body, has political accountability for those decisions. The cost is that the inspector and the board cannot be the same person without creating a self-review problem.

What is the "bingo" part of the inspector's title?

Many small New York villages combine inspection duties for building codes with regulation of bingo and other charitable gaming. The same person checks construction permits and the licenses for bingo halls and similar events. The combined title is the village's choice; nothing in state law mandates it.

Statutory and case-law framework

Village Law § 3-300(3) prohibits a person from simultaneously holding an elective village office and an appointive village office (with limited exceptions).

Municipal Home Rule Law § 10(1)(ii)(e)(3) is the home-rule provision that enables villages to legislate on their officers and employees.

The Ryan v Green common-law incompatibility test applies when no statute resolves the question.

The Wood/Macrum/Brenner line of authority establishes the self-appointment prohibition: a board cannot appoint its own members.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-34_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Page 1 of 2

Opn. No. 95-34
MUNICIPAL HOME RULE § 10(1)(ii)(e)(3); VILLAGE LAW § 3-300(3).
One person should not hold simultaneously the positions of village trustee and village building and
bingo inspector.
July 3, 1995
Bruce W. Musacchio, Esq. Informal Opinion
Village Attorney No. 95-34
Village of Gowanda
P. O. Box 230
Gowanda, NY 14070
Dear Mr. Musacchio:
You have informed us that the existing building and bingo inspector of the village was elected to the
village board of trustees. Your question is whether the inspector, as a member of the board of trustees,
can be appointed by the trustees to a new term as building and bingo inspector.
You indicated that you are aware of section 3-300(3) of the Village Law, which provides that no person
simultaneously may hold an elective and an appointive village office (with certain exceptions that are
not relevant here). We need not determine whether the extent of powers held by the building and bingo
inspector have given "officer" status to that position, causing a violation of this provision. See, Op Atty
Gen (Inf) 92-47, attached, which describes the characteristics of a "public officer". In our view, based on
our telephone conversation in which you specified the powers of this position in inspecting buildings,
the office of village trustee is incompatible with it.
In the absence of a constitutional or statutory prohibition against dual-officeholding, one person may
hold two offices simultaneously unless they are incompatible. The leading case on compatibility of
office is People ex rel. Ryan v Green, 58 NY 295 (1874). In that case the Court held that two offices are
incompatible if one is subordinate to the other or if there is an inherent inconsistency between the two
offices. The former can be characterized as "you cannot be your own boss", a status readily identifiable.
The latter is not easily characterized, for one must analyze the duties of the two offices to ascertain
whether there is an inconsistency. An obvious example is the inconsistency of holding both the office of
auditor and the office of director of finance.
There are two subsidiary aspects of compatibility. One is that, although the common law rule of the
Ryan case is limited to public offices, the principle equally covers an office and a position of
employment or two positions of employment. The other is that, although the positions are compatible, a
situation may arise where one has a conflict of interests created by the simultaneous holding of the two
positions. In such a situation, the conflict is avoided by declining to participate in the disposition of the
matter.
You have informed us that building permits are proposed by the building inspector and then transmitted
to the village board for final approval. Also, the building inspector makes recommendations to condemn
structures which are also transmitted to the village board for approval. Thus, inevitably there are
significant conflicts between the duties of the two positions. The actions of one officer are reviewed by
the other. Op Atty Gen (Inf) No. 89-76. Recusal is not an effective remedy in light of the inevitable and
recurring conflicts.

http://www.oag.state.ny.us/lawyers/opinions/1995/informal/95_34.html

4/21/2006

OPINIONS OF THE ATTORNEY GENERAL

Page 2 of 2

We note that a second legal problem would occur were the village board of trustees to exercise its power
to re-appoint the building and bingo inspector. It has long been established that a board may not appoint
one of its members to a position. Wood v Town of Whitehall, 120 Misc 124 (Sup Ct Wash Co), affd,
206 App Div 786 (3d Dept 1923). See also, Macrum v Hawkins, 261 NY 193 (1933), and Matter of
Brenner v Vines, 35 AD2d 536 (2d Dept 1970). In Wood, the Court decided that it would be contrary to
public policy and the general welfare to uphold such an appointment. The recusal of the member of the
board to be appointed does not remedy the conflict of interests.
When public officers, such as the members of a town board, are vested by the legislature
with power of appointment to office, a genuine responsibility is imposed. It must be
exercised impartially, with freedom from suspicion of taint or bias which may be against the
public interest. An appointing board cannot absolve itself from the charge of ulterior
motives when it appoints one of its own members to an office. It cannot make any
difference whether or not his own vote was necessary to the appointment. The opportunity
improperly to influence the other members of the board is there. No one can say in a given
case that the opportunity is or is not exercised. What influenced the other members to vote
as they did, no one knows except themselves. Were their motives proper, based solely on
the fitness of the appointee? They may have been. Were they improper, based on the
promise or expectation of reciprocal favors? (Id., p 125.)
This doctrine has been applied to offices and positions of employment. 1987 Op Atty Gen (Inf) 167.
We conclude that one person should not hold simultaneously the positions of village trustee and village
building and bingo inspector.
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

http://www.oag.state.ny.us/lawyers/opinions/1995/informal/95_34.html

4/21/2006