If a county supervisor in New York is suing his own county, does he have to step aside from all budget votes?

Plain-English summary

A Hamilton County board of supervisors member filed a federal civil-rights suit seeking $1.5 million against a county official (the county had adopted Public Officers Law § 18, which provides defense and indemnification, so the county itself was on the hook). The county attorney asked the AG whether the supervisor had to step aside from every county budget and appropriation matter, given the financial exposure.

The AG said no, not from every matter. The supervisor had to recuse from any deliberations or votes on the lawsuit itself or similar pending litigation against the county. The supervisor did not have to recuse from general appropriation and financial matters across the board. The reasoning was practical: if a single pending suit against the county disqualified a board member from all budget work, the member would essentially have to resign. State law does not impose that result.

The AG flagged that the county's insurance ($1 million per occurrence, $1 million per year) was not enough to cover the lawsuit, that two other suits also exceeded the limits, and that the county had Local Finance Law authority to borrow to pay judgments. That borrowing authority was part of why the AG concluded that no general blanket recusal was needed. The county could finance the judgments without holding up the budget on votes the suing member had to abstain from.

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 did the AG draw the line at the lawsuit itself rather than all budget items?
The AG balanced two concerns. On one hand, a member who is suing the county for $1.5 million has an obvious personal stake in how the county allocates resources. On the other, the member is also an elected official whose job is to vote on county business. Forcing recusal on every appropriation would functionally remove a duly elected representative from much of the office's work. The AG chose the narrower line: recuse on the lawsuit and similar litigation, participate in everything else.

What is Public Officers Law § 18?
At the time of the opinion, Public Officers Law § 18 was the statutory framework letting local governments provide defense and indemnification for their officers and employees in civil actions arising from their official duties. A county adopted the statute by local law. Once adopted, the county defended and indemnified officers, subject to the statute's conditions.

What if the member is unsure whether to recuse on a given matter?
The AG said the member should recuse when in doubt and should consider asking the local board of ethics for an advisory opinion. General Municipal Law § 808 authorized a county to establish a board of ethics to render advisory opinions to officers and employees. Even where recusal was not legally required, the AG noted that the appearance of impropriety should be avoided to maintain public confidence.

Did the AG think the county could actually pay a judgment that big?
The AG identified Local Finance Law sections that authorized counties to contract indebtedness to pay judgments or settlements that exceeded available appropriations: § 10.00(a), § 11.00(a)(33), § 29.00(d), and § 35.00(b)(4). So even if insurance limits were exceeded, the county had statutory borrowing tools available.

Does this apply to other dual roles where an officeholder is in litigation against the body?
The AG framed this as a general principle that the existence of a lawsuit by an officeholder against the municipality does not, standing alone, disqualify the officeholder from voting on all financial matters. The opinion did not give a one-size-fits-all rule. The AG explicitly noted it could not contemplate every potential situation. The specific recusal lines should be guided by the local ethics code and, in doubtful cases, by an advisory opinion from the local board of ethics.

Background and statutory framework

The legal pieces at play in 1996:

Public Officers Law § 18 authorized local governments to provide defense and indemnification for their officers and employees. Hamilton County had adopted this and had public-officials legal-liability insurance covering $1 million per occurrence and $1 million per year.

Local Finance Law § 10.00(a), § 11.00(a)(33), § 29.00(d), and § 35.00(b)(4) gave municipalities authority to contract indebtedness for paying judgments or compromised claims, including in amounts that exceeded current insurance or available appropriations.

General Municipal Law § 808 authorized a county to create a board of ethics to render advisory opinions to local officers and employees.

The AG's analysis worked backward from the question of whether the member had to resign or recuse from all budget work. The AG concluded that recusing from the specific litigation was sufficient because the county had the legal tools to pay any judgment, including by borrowing, so the supervisor's votes on other matters did not threaten the county's ability to satisfy the judgment.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-10_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Opn. No. 96-10
LOCAL FINANCE LAW §§ 10.00(a), 11.00(a)(33), 29.00(d), 35.00(b)(4); GENERAL MUNICIPAL LAW § 808; PUBLIC OFFICERS LAW § 18.

Litigation by a member of a county board of supervisors against a county official who is eligible to receive defense and indemnification by the county does not disqualify the board member from acting on any financial or appropriation matter. When there is any doubt as to whether the board member can act impartially, he or she should recuse himself or herself or bring the issue before the county board of ethics for an advisory opinion.

March 11, 1996

Charles E. Drake, Esq.
County Attorney
County of Hamilton
1416 Genesee Street
Utica, NY 13502

Informal Opinion No. 96-10

Dear Mr. Drake:

You have inquired whether a member of the county's board of supervisors has a conflict of interests under certain circumstances. Your original inquiry dealt with two members of the board of supervisors. You informed me by telephone, however, that one board member was not reelected.

A member of the board of supervisors instituted a civil rights action in district court against the county seeking $1,500,000 in damages allegedly resulting from the actions of a county official. You have indicated that the county has adopted section 18 of the Public Officers Law, which provides for defense and indemnification of its officers and employees and has acquired public officers legal liability insurance to defend the county and cover its liability. In subsequent correspondence and in a telephone conversation you have explained that the sole question raised is whether the member of the board of supervisors who has a lawsuit pending against the county has a conflict of interests in voting on any financial or appropriation matter on behalf of the county. Apparently, the board of supervisors views the county's ability to pay the costs of any settlement or judgment as matters which may affect the board member's ability to act on any appropriation or financial matters solely in the public interest. You have explained that the county's insurance covers $1,000,000 per occurrence and $1,000,000 per year and that there are two other lawsuits against the county which far exceed the policy limits.

In our view, the existence of the lawsuit does not prohibit the board member from acting on all financial and appropriation matters. If he was prohibited from acting on such matters, to a substantial extent he would not be able to perform the duties of his office and would have to resign. Generally, the existence of a lawsuit by an officeholder against the municipality he serves should not warrant that result. Municipalities that lack the resources to pay any judgment or compromised or settled claim are authorized to contract indebtedness pursuant to provisions of the Local Finance Law in order to make the necessary payments. Local Finance Law §§ 10.00(a), 11.00(a)(33), 29.00(d), 35.00(b)(4). Thus, funds can be made available for payment of claims. The board member, however, must recuse himself from taking part in any deliberations or voting on matters relating to the lawsuit or any similar litigation against the county.

You have raised a general question and, therefore, this opinion cannot contemplate every potential situation and circumstance that may face the member of the board of supervisors. We recommend that in any situation where the board member has any doubts as to whether he can act impartially and solely in the public interest, he should recuse himself from deliberations and decision making. Further, even the appearance of impropriety must be avoided in order to maintain public confidence in government. Additionally, he can present questions to the county board of ethics for an advisory opinion. Under section 808 of the General Municipal Law, the governing body of any county may establish a board of ethics to render advisory opinions to officers and employees.

We conclude that litigation by a member of a county board of supervisors against a county official who is eligible to receive defense and indemnification by the county does not disqualify the board member from acting on any financial or appropriation matter. When there is any doubt as to whether the board member can act impartially, he or she should recuse himself or herself or bring the issue before the county board of ethics for an advisory opinion.

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