Can a New York town attorney's law firm represent the town board's interests in a zoning matter pending before the town's own zoning board of appeals?

Plain-English summary

A law firm was retained by the Town of Blooming Grove to provide legal services to the town board and other town agencies, including the zoning board of appeals. An applicant before the ZBA argued that the firm's effort to provide input on behalf of the town board (a related but separate municipal client) was a forbidden conflict under General Municipal Law § 805-a(1)(c), which bars a municipal officer or employee from compensated representation of a private client in a matter before an agency he serves or appoints.

The AG rejected the argument and clarified two things.

First, § 805-a(1)(c) targets the lawyer-as-private-litigant scenario. Its purpose is to prevent a municipal officer or employee from taking pay to represent a private client in front of the agency he sits on or supervises. That risk is not present when the same lawyer represents the town board itself (a public client) in a matter before the ZBA. The town board has a legitimate interest in being heard on planning and zoning matters, and the town attorney is the natural conduit for that voice. The opinion ties this to a prior AG conclusion (Op Atty Gen (Inf) No. 93-36) that an outside law firm contracted as municipal counsel cannot represent a private client before its own agency: the bar reaches independent contractors too, but only in the private-client posture.

Second, the lawyer cannot wear two hats in the same proceeding. The firm cannot simultaneously represent the town board and the ZBA in the same matter. That would put the firm in actual conflict between two clients with potentially opposing positions on the application. To solve that, the AG invoked Cahn v Town of Huntington, 29 NY2d 451 (1972), which recognized that a municipal agency has implied authority to employ counsel when the regular municipal attorney is unable or unwilling to act, or is disqualified. Even without an express statutory grant, the ZBA can hire independent counsel for this matter. The town pays.

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 does GML § 805-a(1)(c) actually prohibit?

It bars a municipal officer or employee from receiving compensation for services rendered to a private client in a matter before a municipal agency where the officer is a member, employee, or has appointment authority. The classic example: a council member taking private fees to advocate before the planning board on which his appointees sit.

Why doesn't the bar reach a town attorney advocating for the town board?

Because the town board is not a private client. The board has its own institutional interest in zoning matters that affect town policy, and the town attorney's job is to advance those public-interest positions. § 805-a(1)(c) is about preventing public office from being used as a back-door for private gain. Representing one public client in front of another public agency does not fit that template.

Could the same law firm also represent the ZBA in this case?

No. The firm has at least the potential of conflicting roles (the town board may be advocating for outcome X, the ZBA must decide whether to grant outcome X). The firm cannot serve both clients in the same proceeding. Cahn v Town of Huntington supplies the implied authority for the ZBA to hire independent counsel when the regular municipal counsel is disqualified.

Who pays for the ZBA's independent counsel?

The town. The ZBA's implied authority to hire counsel necessarily includes the authority to bind the town for the reasonable cost of that counsel; otherwise the implied authority would be hollow. Cahn turned on the broader proposition that municipal subdivisions have inherent authority to obtain legal services when needed to perform their public functions.

What about the appearance side of the issue?

The AG focused on the substantive purpose of § 805-a(1)(c). On the appearance question, the opinion implicitly relies on the structural separation: the ZBA's independent counsel handles the proceedings in front of the board, the town attorney handles the town board's input. The two pieces of legal work are conducted on different sides of the matter.

Does this analysis change for villages or counties?

The same general principle applies. The relevant attorney-officer relationships and statutory frameworks differ in detail, but the GML § 805-a private-client bar and the Cahn implied-authority principle are general municipal-law concepts that translate to other levels of local government.

Background and statutory framework

GML § 805-a(1)(c) is part of the local-ethics code that supplements New York's Public Officers Law conflict provisions. It expressly applies to "municipal officers and employees" and is read by the AG (in Op Atty Gen (Inf) No. 93-36) to reach independent contractors who serve as municipal counsel. The substantive ban is on compensated private representation in matters before agencies of which the lawyer is officer, member, employee, or appointing authority.

Cahn v Town of Huntington, 29 NY2d 451 (1972), is the foundational New York case on implied authority of municipal agencies to retain counsel. The Court of Appeals held that a board possesses implied authority to employ counsel in the public interest where the municipal attorney refuses to act, is incapable, or is disqualified from acting.

Citations

• General Municipal Law § 805-a(1)(c) (private-client representation bar).
• Cahn v Town of Huntington, 29 NY2d 451 (1972) (implied authority of municipal agency to retain counsel).
• Op Atty Gen (Inf) No. 93-36 (extending § 805-a analysis to municipal counsel as independent contractor).
• Op Atty Gen (Inf) No. 83-37 (town attorney's general responsibility for legal services to town officers and agencies).
• Op Atty Gen (Inf) No. 88-10 (town may contract for legal services in lieu of establishing a town attorney position).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-41_pw.pdf

Original opinion text

GENERAL MUNICIPAL LAW § 805-a(1)(c).
Representation of the town board by the municipal attorney
in a matter before the zoning board of appeals is not a violation
of section 805-a(1)(c) of the General Municipal Law. The zoning
board of appeals has implied authority to employ legal services
regarding the matter.
October 1, 1997

Donald G. Nichol, Esq.
Town Attorney
Town of Blooming Grove
P. O. Box 367
Walden, NY 12586-0367

Informal Opinion
No. 97-41

Dear Mr. Nichol:
You have asked whether representation by your law firm of
the town board in an application before the town zoning board of
appeals violates General Municipal Law § 805-a(1)(c).
You have informed us that your law firm has been appointed
by the town board to provide legal services to the board and to
other agencies of the town including the zoning board of appeals.
The applicant in a matter before the zoning board of appeals has
taken the position that your firm's representation of the town
board to provide input regarding this matter is a violation of
section 805-a(1)(c) of the General Municipal Law. That provision
states that no municipal officer or employee may
receive, or enter into any agreement, express
or implied, for compensation for services to
be rendered in relation to any matter before
any municipal agency of which he is an
officer, member or employee or of any
municipal agency over which he has
jurisdiction or to which he has the power to
appoint any member, officer or employee
. . ..
Generally, the office of town attorney is responsible for
the provision of legal services to officers and agencies of the
town, except where the town board or a statute expressly
authorizes an agency or officer to employ separate legal counsel.
Op Atty Gen (Inf) No. 83-37. A town may, in lieu of establishing

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the position of town attorney, contract for the provision of
legal services. Op Atty Gen (Inf) No. 88-10. Your law firm is
providing services by contract to the town board and other
officers and agencies of the town.
In a prior opinion of this office, we found that while
section 805-a(1)(c) of the General Municipal Law does not
expressly cover an independent contractor employed as a board's
attorney, the representation of a private client by the
contractor for compensation in an application before the board is
a conflict of interests. Op Atty Gen (Inf) No. 93-36. We found
that even though this representation may not violate section
805-a(1)(c), it is a violation of common law conflict of
interests standards. Id.
As we found in our 1993 opinion, the purpose of section
805-a(1)(c) is to prohibit an officer, member or employee of a
municipal agency from representing a private client for
compensation before the agency he or she serves. The obvious
intent of this provision is to avoid circumstances which may
compromise the ability of the agency to make impartial decisions
solely in the public interest. The risk of favoritism, overt or
subconscious, is present. At least an appearance of impropriety
would result if counsel to the agency appeared before it
representing a private client for compensation.
In our view, however, your law firm's representation of the
town board in providing input in the matter before the zoning
board of appeals does not fall within the prohibition of section
805-a. Nor is it a common law conflict of interests. The town
board has a right to provide input regarding a matter before the
zoning board of appeals and the town attorney or the attorney or
law firm providing legal services to the town by law represents
the town board. Unlike representation of a private client before
an agency of the town, representation of the town board is in the
public interest. This representation does not fall within the
legislative intent of the prohibition of section 805-a(1)(c).
Id.
Obviously, your law firm cannot also represent the zoning
board of appeals in this administrative proceeding.
Notwithstanding any absence of statutory authority for the zoning
board of appeals to obtain independent counsel, a municipal
agency or board possesses implied authority to employ counsel in
the public interest where the municipal or other attorney
responsible for providing legal services refuses to act, is
incapable of acting, or is disqualified from acting. Cahn v Town
of Huntington, 29 NY2d 451 (1972). Therefore, where your law

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firm represents the town board, the zoning board of appeals has
implied authority to employ legal counsel to represent it in the
matter.
We conclude that representation of the town board by the
municipal attorney in a matter before the zoning board of appeals
is not a violation of section 805-a(1)(c) of the General
Municipal Law. The zoning board of appeals has implied authority
to employ legal services regarding the matter.
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