Can the same person be Troy's corporation counsel and serve on the Troy school board?

Subject

The corporation counsel of Troy is a public officer holding a "city office" under Education Law § 2502(7), barring simultaneous service on the city's school board

Plain-English summary

Troy has fewer than 125,000 residents, so its school district is an enlarged city school district under Education Law Article 51 (§ 2501). Section 2502(7) prohibits the same person from holding the office of school board member and any city office, other than policeman or fireman, in such districts. The school district's counsel asked whether Troy's corporation counsel could serve on the city school board.

The answer hinged on whether corporation counsel is a "public office" or a "position of employment." If office, § 2502(7) applies; if employment, it might not.

The AG concluded corporation counsel is a public office.

The framework for distinguishing office from employment, drawn from Op Atty Gen (Inf) 95-40 and a long line of cases:

• Sovereign powers test: officers exercise sovereign power; employees do not (Dawson v Knox; Haller v Carlson).
• Statutory designation as "office" is some evidence (MacDonald v Ordway).
• Other indicia: required oath of office, required bonds, definite term, commission of office, official seal (Macrum v Hawkins).
• The position must be created by statute or local law with statutorily prescribed powers and duties (Lake v Binghamton Housing Authority; County of Suffolk v State).

Case law on municipal attorneys is mixed. Town attorney is a public officer (Riester v Reilly). Village attorney was held not to be (Fisher v Mechanicville, on facts where the position was filled by contract for a fixed sum), but a later decision (D'Ambrosio v Reile) treated village attorney as a public officer. County attorney was not a public officer in Dawson v Knox, but the Court of Appeals in the later Thompson v Hofstatter case (decided after Dawson at the Appellate Division but before Court of Appeals affirmance of Dawson) reached the opposite conclusion and criticized the Dawson rationale; Matter of DesPres treated Hofstatter as still good law. Corporation counsel was not a public officer in Senecal v City of Cohoes (where counsel was retained, not appointed). And Rappel v Roberts said corporation counsel is not vested with sovereign powers.

The AG worked through these inconsistencies and landed on the position-specific facts of Troy: the corporation counsel is the head of the city's law department; appointed by the mayor with city council confirmation; serves at the pleasure of the mayor; must have at least five years' law-practice experience; advises the council and the mayor; represents the city in all actions. Those facts add up to a public officer: head of a municipal department, chief legal officer of the city, exercising sovereign power on the city's behalf.

The Legislature itself appears to assume corporation counsel is a public officer in Public Officers Law § 3(11), which creates a residency-requirement exception for the city attorney of Salamanca, an exception that makes sense only if the position is treated as a public office. A 1975 AG opinion had also reached the same conclusion (1975 Op Atty Gen (Inf) 141).

So the prohibition in § 2502(7) applied: Troy's corporation counsel could not simultaneously serve on the school board.

The opinion's second piece addressed past board actions. If the corporation counsel had been serving on the board, were the board's votes invalid? No, said the AG. The de facto officer doctrine (Ontario v Western Finger Lakes Solid Waste Management Authority) protects acts taken by someone serving under color of authority, immune from collateral attack, even when the appointment was irregular. The board's prior votes survive even though the dual service was unlawful going forward.

Currency note

This opinion was issued in 1996. 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 the office/employment distinction so contested?

Because it triggers different rules. Officers face residency requirements, oath requirements, conflict-of-interest constraints, and disability rules. Employees do not. Municipalities have an incentive to characterize attorneys as employees (more flexibility), while plaintiffs and prosecutors often want the officer characterization.

What about the police/fire exception in § 2502(7)?

The Legislature carved out policemen and firemen, recognizing that uniformed services are commonly held positions in city government and that holding such roles concurrent with school board service does not create the conflict the statute targets. Other city offices (counsel, treasurer, comptroller, etc.) do not get the carve-out.

Does the de facto officer doctrine cure the legal problem prospectively?

No. The doctrine protects past acts from collateral attack but does not authorize continued service. Once the incompatibility is identified, the person must vacate one of the two offices. The doctrine just prevents retrospective unraveling of decisions made before the issue surfaced.

Why does the AG cite the Salamanca residency exception?

Because it is a Legislature-level signal. By creating an explicit exception in § 3(11) for the Salamanca city attorney's residency requirement, the Legislature implicitly treated city attorney positions as public offices subject to § 3 generally. That implicit treatment is persuasive evidence of how the Legislature views the office/employment line for this type of position.

What if Troy reorganized counsel as a contract position?

Then the analysis might change, similar to the Fisher v Mechanicville scenario. A genuine contract-counsel arrangement (without department headship, statutory duties, or city-officer trappings) might escape § 2502(7). But the Troy facts here (department head, mayor's nomination, council confirmation, statutory duties) put the position firmly on the public-officer side.

Statutory framework

Education Law Article 51, § 2501 covers enlarged city school districts in cities with fewer than 125,000 residents.

Education Law § 2502(7) prohibits a person from simultaneously holding the office of school board member and any city office, other than policeman or fireman.

Public Officers Law § 3 imposes residency requirements on public officers. § 3(11) carves out an exception for the city attorney of Salamanca.

The de facto officer doctrine (Ontario v Western Finger Lakes Solid Waste Management Authority) protects acts of someone serving under color of authority from collateral attack.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-2_pw.pdf

Original opinion text

EDUCATION LAW ART 51, §§ 2501, 2502(7); PUBLIC OFFICERS LAW § 3(11).

A person may not simultaneously serve as the corporation counsel of the City of Troy and as a member of the board of education of the Troy City School District.

February 6, 1996

James A.P. McCarthy, Esq.
Enlarged City School District of Troy
120 State Street
Albany, NY 12207-2829

Informal Opinion
No. 96-2

Dear Mr. McCarthy:

You have asked whether a person may serve as corporation counsel of the City of Troy while also holding the position of member of the board of education of the Troy City School District.

You have indicated that the City of Troy has a population of fewer than 125,000 people and that the district is, therefore, an enlarged city school district. Article 51 of the Education Law governs school districts of each city which according to the last Federal census has fewer than 125,000 inhabitants. Education Law § 2501. In such a school district, no person "shall hold at the same time the office of member of the board of education and any city office other than as a policeman or fireman". Id., § 2502(7). If the position of corporation counsel of the City of Troy is a public office, simultaneous service on the Troy School District's Board of Education and as corporation counsel of the City of Troy would violate section 2502(7).

In a recent opinion of this office, we set forth the standards for determining whether a position is an office rather than a position of employment.

A determination as to whether an appointee is an officer rather than an employee requires a judgment whether the powers, duties, qualifications and other characteristics of the job make him an officer rather than an employee. The distinction between a public office and public employment is not always clear. Matter of Dawson v Knox, 231 App Div 490, 492 (3d Dept 1931). The duties of a public official involve some exercise of sovereign powers while those of a public employee do not. Ibid.; Matter of Haller v Carlson, 42 AD2d 829 (4th Dept 1973). The statutory designation of a position as an office is some indication that the legislative body intended to treat its occupant as a public officer. Matter of MacDonald v Ordway, 219 NY 328, 332 (1916); Matter of Haller v Carlson, supra, p 830. Other indicia of a public office are the requirement to take an oath of office or file bonds, appointment for a definite term and receipt of a commission of office or official seal. Macrum v Hawkins, 261 NY 193, 200-201 (1933). A public office is created by statute or local law and its powers and duties are prescribed by statute or local law. Matter of Lake v Binghamton Housing Authority, 130 AD2d 913, 914 (3d Dept 1987); Matter of County of Suffolk v State of New York, 138 AD2d 815, 816 (3d Dept 1988), affd, 73 NY2d 838 (1989).

. . .

It is clear that while there are several indicia of status as a public officer, one qualifies as a public officer by exercising a portion of the sovereign powers of government.

Op Atty Gen (Inf) No. 95-40.

While there is a lack of uniformity in judicial decisions as to whether municipal attorneys are public officers, in our view, a municipal attorney who is the head of the municipality's law department, serves as the chief legal officer of the municipality, and is responsible for offering advice to municipal officials and defending and commencing actions on behalf of the municipality is a public officer.

A town attorney is a public officer (Riester v Reilly, 138 Misc 2d 68 [Sup Ct Albany Co 1988]). A village attorney was found not to be a public officer (Fisher v City of Mechanicville, 225 NY 210 [1919]), but in a later decision was determined to have this status (D'Ambrosio v Reile, 106 AD2d 856 [4th Dept 1984]). In Fisher, however, the Court of Appeals based its determination upon the act incorporating the village which listed village officers and did not name the village attorney; did not require that the village attorney take an oath; and did not specify the duties that the village attorney was to perform. The Court found that legal services were being provided to the village by contract for a period of one year for a fixed sum.

In Matter of Dawson v Knox, 231 App Div 490 (3d Dept 1931), affd without opinion, 267 NY 565 (1935), the Court determined that the county attorney is not a public officer. In another decision, however, the Court of Appeals held that the county attorney does have public officer status. Thompson v Hofstatter, 265 NY 54 (1934). While Hofstatter was decided after the Appellate Division decision in Dawson v Knox, it was handed down prior to the Court of Appeals affirmance of Dawson. However, the County Law had been amended when Hofstatter was decided and the Court of Appeals in Hofstatter specifically criticized the Appellate Division's decision in Dawson, stating that the holding in that case that the county attorney is an employee and not an officer "does not meet with our approval". In finding that the county attorney is a public officer, the opinion in Matter of DesPres v Niagara County Supervisors, 37 Misc 2d 1087 (Sup Ct Niagara Co 1963), referred to these factors in stating that the affirmance by the Court of Appeals in the Dawson case did not indicate a reversal of its opinion in Hofstatter. DesPres, supra, p 1089.

In Senecal v City of Cohoes, 27 AD2d 773 (3d Dept 1967), the Court found that the corporation counsel was not a public officer but based this determination on a review of the city charter, which revealed that the counsel was neither appointed nor elected to office but was rather retained in his professional capacity. In Rappel v Roberts, 79 Misc 2d 201 (Sup Ct Nassau Co 1973), the court found that the position of corporation counsel is not a public office because it is not vested with sovereign powers of government. The primary cases cited, however, in support of this finding, were Dawson, Fisher, and Cohoes which were decided on particular facts.

The State Legislature presumed that the position of city attorney of the City of Salamanca is a public office in creating an exception to the residency requirement under section 3 of the Public Officers Law for that position. Public Officers Law § 3(11). This office had concluded in a prior opinion that the corporation counsel is a public officer. 1975 Op Atty Gen (Inf) 141.

You have informed us that the corporation counsel of the City of Troy is the head of the department of law. He or she is appointed by the mayor, subject to confirmation by the city council and serves at the pleasure of the mayor. To qualify he must have at least five years experience in the practice of law prior to his appointment. He acts as the legal advisor to the city council and to the mayor and appears for and protects the rights and interests of the city in all actions, suits or proceedings brought by or against it or against any city officer, department, board or commission in connection with municipal business.

In our view, the corporation counsel of the City of Troy is a public officer. He is the head of a municipal department. Additionally, he serves as the chief legal officer of the municipality. Therefore, we conclude that simultaneous service as corporation counsel and as a member of the Troy City Board of Education would violate section 2502(7) of the Education Law.

You also have asked whether the membership of the corporation counsel on the board of education would jeopardize votes taken by the board in the event they are later challenged. A presumptively valid but defeasible appointment does not warrant invalidation of the acts of the appointee or the body to which he was appointed. Ontario v Western Finger Lakes Solid Waste Management Authority, 167 AD2d 848 (4th Dept 1990).

Under the de facto officer doctrine, the acts of one who carries out the functions of a public office under color of authority are generally valid as to third persons and the public, and hence immune from collateral attack, notwithstanding irregularities in the manner in which the officer was appointed.

Id., p 849. The de facto officer doctrine is founded upon reasons of policy and necessity, in that it protects the interests and reasonable expectations of the public which must rely on the presumptively valid acts of public officials. Id.

We conclude that a person may not simultaneously serve as the corporation counsel of the City of Troy and as a member of the board of education of the Troy City School District.

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