Can a New York town's deputy building inspector inspect the building inspector's own home and issue permits, given that the deputy reports to the inspector?

Plain-English summary

The Town of Stony Point's building inspector wanted permits on his own home and disclosed that intention to the town supervisor. The deputy inspector, appointed by the town board (not by the building inspector personally), would handle the inspection. The town attorney asked whether the appearance issue created by the supervisor-subordinate relationship disqualified the deputy from doing the work.

The AG laid out the values in tension. Public officials must avoid arrangements that compromise their ability to make impartial judgments solely in the public interest. The deputy passing on the boss's permit request triggers a real appearance problem because the deputy is, in the ordinary course, supervised and disciplined by the very person whose home he is inspecting.

The AG then applied the rule of necessity. In this town, the building inspector and the deputy were the only individuals authorized to make inspections and issue permits. There was no neutral alternative. When the choice is between a tainted inspector and no inspection at all, the rule of necessity allows the otherwise conflicted official to act. The AG cited Morgenthau v Cooke, 56 NY2d 24 (1982), the standard New York authority on the rule: a judge with a personal interest should not hear a case if it can be avoided, but must hear it if no one else can.

The AG noted that involving someone else (for example, a neighboring municipality's inspector, the county, or a special arrangement under intermunicipal agreement) would be preferable if available. The opinion's holding is for the situation where no such alternative exists.

Currency note

This opinion was issued in 1997. 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 rule of necessity?

It is a common-law doctrine that lets an otherwise conflicted official act when no neutral substitute is available. The classic statement is Morgenthau v Cooke: judges should recuse where possible, but must hear a case if no other tribunal can. The doctrine prevents conflicts of interest from grinding governmental functions to a halt.

Why doesn't recusal solve the problem?

Recusal works only when someone else is available to act. In Stony Point, only the inspector and the deputy were authorized to inspect and issue permits. If the deputy recused himself, the inspector would have to do his own inspection, which is worse. The deputy was the lesser conflict.

Should the town do anything to manage the appearance issue?

The opinion does not prescribe steps, but the practical answers are commonsense: full disclosure to the town board, careful documentation of code compliance, and after-the-fact review by another qualified inspector if one becomes available. The disclosure to the town supervisor that already happened here was a good first step.

What if the inspector and the deputy are friends, related, or otherwise close?

The opinion does not address closer relationships. A family relationship between the inspector and the deputy could push past what the rule of necessity can sustain. In that scenario, the AG's analysis would have pointed harder toward an outside inspector arrangement.

Could the town set up something different for the future?

Yes, and the opinion implicitly invites that. Future inspections of a building inspector's home or of close relatives could be handled through an intermunicipal agreement with a neighboring municipality or the county. Where a neutral alternative exists, the rule of necessity does not apply and the deputy should step aside.

Background and statutory framework

The opinion sits at the intersection of two common-law doctrines for public officials. First, the impartiality principle: officials must make decisions in the public interest and must avoid even the appearance of impropriety. Op Atty Gen (Inf) No. 97-5 is a representative prior opinion. Second, the rule of necessity, drawn from judicial-disqualification doctrine and extended to administrative officers, lets a conflicted official act where no substitute is available. Morgenthau v Cooke, 56 NY2d 24, 29 n.3 (1982), is the controlling New York authority.

When both rules pull in different directions, the rule of necessity wins. Otherwise the government would be unable to function whenever an inspector or other small-staff official needed a permit or service from the office.

Citations

• Morgenthau v Cooke, 56 NY2d 24, 29 n.3 (1982) (rule of necessity; a judge with a personal interest must nonetheless hear the case if no one else can).
• Op Atty Gen (Inf) No. 97-5 (impartiality principle for public officials, referenced by the opinion).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-35_pw.pdf

Original opinion text

A deputy building inspector may perform inspections on the
building inspector's home and issue any necessary permits.

August 1, 1997
Frank J. Phillips, Esq.
Town Attorney
Town of Stony Point
74 East Main Street
Stony Point, NY 10980

Informal Opinion
No. 97-35

Dear Mr. Phillips:
You have asked whether the deputy building inspector may
perform inspections and, if appropriate, issue permits regarding
the building inspector's home. You point out that the town
board, and not the building inspector, appointed the deputy. You
have advised us that the building inspector disclosed to the town
supervisor that the deputy would be conducting an inspection on
the building inspector's home. You also state that the building
inspector is an at-will employee of the town who works without a
contract.
In prior opinions, we have emphasized that public officials
should avoid circumstances that compromise their ability to make
impartial judgments solely in the public interest. See, e.g.
Op Atty Gen (Inf) No. 97-5. The situation you describe gives
rise at least to an appearance that the deputy's ability to make
impartial judgments may be compromised, since the deputy will be
responsible for determining whether his superior receives a
requested permit. Accordingly, it would be preferable if someone
other than the deputy could conduct the inspection. However, in
your town the building inspector and the deputy are the only
individuals authorized to make inspections and issue permits. In
our view, therefore, a "rule of necessity" should apply and the
deputy may conduct the inspection and, if warranted, issue any
permits. See, Morgenthau v Cooke, 56 NY2d 24, 29 n3 (1982)
(although a judge ought not hear a case in which the judge has a
personal interest if it can be avoided, the judge must hear the
case if it cannot be heard otherwise).
We conclude that, under the circumstances, the deputy
building inspector may perform inspections on the building
inspector's home and issue any necessary permits.

2
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,

SIOBHAN S. CRARY
Assistant Attorney General