Can the Buffalo Commissioner of Neighborhoods, Housing and Inspections also serve on the Buffalo Municipal Housing Authority's board of commissioners and on the board of a HUD Section 8 administering nonprofit?

Subject

Compatibility of office: simultaneous service as City of Buffalo Commissioner of Neighborhoods, Housing and Inspections; member of the Buffalo Municipal Housing Authority board of commissioners; and member of the board of directors of the Rental Assistance Corporation of Buffalo (a HUD Section 8 administrator).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-40_pw.pdf

Plain-English summary

Buffalo's general counsel for the city's housing authority asked whether the city's Commissioner of Neighborhoods, Housing and Inspections could hold two additional positions: a seat on the Buffalo Municipal Housing Authority's seven-member board of commissioners, and a seat on the board of directors of the Rental Assistance Corporation of Buffalo (RAC), a local nonprofit that administered Buffalo's federal HUD Section 8 voucher program.

The AG cleared all three. Public Housing Law § 30(4) specifically allows one BMHA commissioner to also serve as a city official or employee, so the State Legislature had already determined that this kind of overlap is acceptable. As to the RAC seat, the AG applied the classic People ex rel. Ryan v Green test: two offices are incompatible only if one is subordinate to the other or if there is an inherent inconsistency in their duties. RAC is a HUD-supervised nonprofit, the housing authority is an independent public benefit corporation, and the city commissioner is responsible for citywide housing policy. None of those entities is subordinate to the others in a way that creates a "you cannot be your own boss" problem, and all three serve overlapping (not opposing) housing missions. Any specific conflict that surfaced in a particular matter could be handled by recusal.

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

What is the "compatibility of office" doctrine?
It is the common-law rule that one person may hold two or more public offices simultaneously unless they are incompatible. Two offices are incompatible if one is subordinate to the other or if their duties create an inherent inconsistency. The leading New York case is People ex rel. Ryan v Green, 58 NY 295 (1874), which has been the framework for over a century.

Why is the housing authority not subordinate to the city?
The Public Housing Law structures municipal housing authorities as independent public corporations (Ciulla v State of New York). The Buffalo Municipal Housing Authority was established by the State Legislature (Public Housing Law §§ 37, 404), its commissioners are appointed by the mayor (§ 30(2)), but it operates with separate budgeting, contracting, and litigation authority. So a city commissioner sitting on the BMHA board is not supervising himself.

What about RAC, the Section 8 nonprofit?
RAC is a separate not-for-profit corporation whose activities are supervised by HUD under 24 CFR Part 811 (and related regulations governing Section 8 administering entities). RAC's compliance obligations run to HUD, not to City Hall, so its operations do not put the city housing commissioner in a self-review posture.

Could there be specific conflicts of interest in particular matters?
Yes. The AG noted that even where offices are compatible, a specific conflict can arise in a particular case. The remedy is recusal: the official declines to participate in the matter where his city role and his BMHA or RAC role would otherwise pull in opposite directions. Where such conflicts are not "inevitable" but only "possibilities," the underlying compatibility holds and recusal in occasional cases is enough.

What did the AG say about General Municipal Law § 806?
The AG cited § 806, the codes-of-ethics statute, as part of the general compatibility framework. Section 806 requires municipalities to adopt local ethics codes, including rules on disclosure and recusal. A city that follows this opinion's compatibility holding should still have its ethics code in place so that recusal is mechanically available when an issue lands at the intersection of the three boards.

Background and statutory framework

Municipal housing authorities in New York are creatures of the Public Housing Law. Each authority is set up by special enabling legislation that fits within the overall framework of the statute. The Buffalo authority was established under Public Housing Law §§ 37 and 404. The local mayor appoints the BMHA board members, subject to the § 30 structural rules. Section 30(4) is the key provision for this opinion: it permits a single member of the authority to also serve as an officer or employee of the city.

The federal Section 8 program (now the Housing Choice Voucher Program) is administered locally by public housing agencies and, in some jurisdictions, by nonprofit organizations that contract with HUD or a state agency. 24 CFR Part 811 (and successor regulations) govern those administrators, including their organizational documents, financial controls, and reporting obligations. RAC fit that pattern in 1996.

People ex rel. Ryan v Green has been the workhorse compatibility-of-office case for over 120 years. Its two-part test (subordination plus inherent inconsistency) reads simply but does heavy lifting: the AG's office has applied it in dozens of opinions per year on every imaginable pair of local positions, including legislators wearing multiple municipal hats, attorneys serving multiple boards, and officers of overlapping public benefit corporations.

Citations

• General Municipal Law § 806 (municipal codes of ethics)
• Public Housing Law § 30(2) (mayor appoints BMHA commissioners)
• Public Housing Law § 30(4) (one BMHA member may also be city officer or employee)
• Public Housing Law §§ 37, 404 (establishment of BMHA)
• 24 CFR §§ 811.101, et seq. (HUD regulation of Section 8 administrators)
• People ex rel. Ryan v Green, 58 NY 295 (1874) (compatibility-of-office test)
• Ciulla v State of New York, 191 Misc 528 (Ct Cl 1948) (housing authority is an independent public corporation)

Original opinion text

Opn. No. 96-40
GENERAL MUNICIPAL LAW § 806; PUBLIC HOUSING LAW §§ 30, 37, 404; 24 CFR §§ 811.101, et
seq.
The position of city commissioner of neighborhoods, housing and inspections, member of a board of
commissioners of a municipality's housing authority and member of a local not-for-profit corporation
that administers the municipality's United States Department of Housing and Urban Development
(HUD) Section 8 programs are compatible.
Gillian D. Brown, Esq. Informal Opinion
General Counsel No. 96-40
Buffalo Municipal Housing Authority
300 Perry Street
Buffalo, NY 14204-2299
Dear Mr. Brown:
You ask whether the City of Buffalo's Commissioner of Neighborhoods, Housing and Inspections may
serve as a member of the Buffalo Municipal Housing Authority (BMHA) Board of Commissioners and
as a member of the Board of Directors of the Rental Assistance Corporation of Buffalo (RAC), a local
not-for-profit corporation that administers the United States Department of Housing and Urban
Development (HUD) Section 8 program in Buffalo.
The Commissioner of Neighborhoods, Housing and Inspections is responsible for the city's housing
policy. He or she prepares a comprehensive plan for revitalization of city neighborhoods including
provisions for code enforcement, grant programs and new housing strategies. The Commissioner is in
charge of all publicly supported neighborhood residential rehabilitation and construction and enforces all
laws governing construction, alteration, repair and maintenance of buildings and structures.
The BMHA has been established by the State Legislature as a public corporation and has as its general
purpose the alleviation of adverse housing conditions in the City of Buffalo. Public Housing Law §§ 37,

404. The BMHA is governed by a seven-member board of commissioners. The mayor of Buffalo names
     the appointive members of the Authority. See, Public Housing Law § 30(2). The Public Housing Law
     permits one member of the BMHA to serve as an official or employee of the City of Buffalo. Id., § 30(4).
     Therefore, the commissioner by law may serve on the housing authority's board.
     In the absence of a constitutional or statutory prohibition against dual-officeholding, one person may
     hold two or more 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 ordinarily easy
     to understand. The latter is not as 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. If such situations are inevitable as opposed to being possibilities, there is an inherent
     inconsistency in the positions.
     As the City of Buffalo's designated administrator of Federal Section 8 certificates, RAC is responsible
     for making its determinations consistent with HUD regulations. While a not-for-profit corporation,
     RAC's activities are subject to supervision by HUD. See, 24 CFR §§ 811.101, et seq.; Municipal
     housing authorities, in contrast, are governmental bodies existing as independent public corporations
     separate from the State and its municipalities. Ciulla v State of New York, 191 Misc 528 (Ct Cl 1948).
     As such, the board of commissioners of the BMHA is legally independent of the city government of the
     City of Buffalo.
     Given the status of these entities, it is unlikely that the functions and duties of a housing authority
     commissioner and a member of the board of directors of the rental assistance corporation will conflict.
     In our view, the two positions are compatible.
     Also, the Commissioner of Neighborhoods, Housing and Inspections' responsibility for the city's
     housing policy appears to be consistent with membership on RAC's board. Both positions serve the
     city's housing interests. Should a conflict of interests occur between any of these positions, it can be
     remedied through recusal.
     We conclude that the Commissioner of Neighborhoods, Housing and Inspections may also be a board
     member of both the Buffalo Municipal Housing Authority and the Rental Assistance Corporation.
     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,
     JOSEPH CONWAY
     Assistant Attorney General