Can a New York county legislator also serve on the board of the Montgomery-Otsego-Schoharie Solid Waste Management Authority, given the extensive interaction between the Authority and the participating counties?

Plain-English summary

The Montgomery-Otsego-Schoharie Solid Waste Management Authority (MOSA) was established by L 1987, ch 747, to handle solid waste planning, collection, transportation, processing, and disposal for the three participating counties. Public Authorities Law § 2041-d gives MOSA the standard authority powers: plan and build facilities, collect and process solid waste, acquire property, contract, borrow money, and issue bonds. MOSA's board has eight members: three from Montgomery County (one of whom must reside in the City of Amsterdam), three from Otsego County (one from the City of Oneonta), and two from Schoharie County. The counties' governing-board chairs appoint, and the governing boards confirm (§ 2041-b(1)). The governing boards can also remove for inefficiency, neglect of duty, or misconduct.

The interaction between MOSA and the participating county legislatures is extensive. The opinion catalogues nine interconnections: appointment and removal of MOSA board members by counties; counties advancing money or property to MOSA (§ 2041-c(1), (2)); counties prescribing penalties for violations of MOSA by-laws (§ 2041-d(10)); transfer of county employees to MOSA when needed (§ 2041-f); MOSA's use of county and municipal officers or employees with consent (§ 2041-d(11)); contracts between counties and MOSA on solid waste (§ 2041-t(1)); local laws limiting competition for waste services (§ 2041-t(2)); county pledges to bondholders (§ 2041-s); other gifts, grants, loans, and contributions (§ 2041-t(4)).

Counsel asked whether a county legislator could serve on the MOSA board given this extensive interaction.

The AG concluded that the positions are compatible. Three lines of analysis.

Legislative intent on dual membership. Public Authorities Law § 2041-b requires MOSA board members to be residents of the appointing participating county. County legislators must be residents of their counties by virtue of their elected office. So the residency requirement does not bar dual office holding. Section 2041-b(3) bars elected officials of participating counties (or municipalities therein) from being appointed as MOSA employees. The opinion treats this as a strong signal: the Legislature focused on the appearance problem with employees (where elected officials might influence themselves into a paid position), and explicitly addressed only that. MOSA board members serve without compensation, getting only expense reimbursement (§ 2041-b(2)). The Legislature could have barred elected officials from board service alongside employee service; it chose to bar only employee service. That choice supports compatibility.

Precedent in other authority statutes. Earlier statutes had explicitly authorized municipal officials and employees to serve on the board of other local public authorities (urban renewal agencies, the Niagara Falls Urban Renewal Agency, industrial development agencies). General Municipal Law § 553(4) (L 1962, ch 921), § 593 (L 1964, ch 545), § 856(4) (L 1969, ch 1030); see also Education Law § 6306(1) (L 1953, ch 271) (community college boards). The pattern was consistent: when public authorities and municipal-officer service intersect, the Legislature has repeatedly authorized dual membership. Op Atty Gen (Inf) No. 86-57 confirmed the IDA-municipal-official precedent.

Standard compatibility analysis under Ryan v Green. The AG ran the standard People ex rel. Ryan v Green, 58 NY 295 (1874), incompatibility test: one position subordinate to the other, or inherent inconsistency between duties. Neither was true. MOSA is an independent legal entity. The county legislature does not supervise the MOSA board, and the MOSA board does not supervise the county legislature. The duties do not inherently conflict. MOSA was formed to perform services for the participating counties, so the alignment is closer than the conflict.

The recusal backstop. If a county legislator on the MOSA board faces a specific matter where his county and MOSA are at cross-purposes (litigation between county and MOSA; a contract negotiation where the county's and MOSA's interests sharply diverge), recusal handles the case-by-case conflict. The general dual membership is compatible; the specific matter that creates a conflict gets recused.

Bottom line. A county legislator may serve on the MOSA board and "generally may exercise the statutory powers granted to both entities." The opinion does not promise that no conflict will ever arise; it confirms that compatibility-of-offices doctrine does not bar the dual role.

Currency note

This opinion was issued in 1999. 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 "incompatibility of offices" mean in New York law?

People ex rel. Ryan v Green is the leading 1874 case. Two offices are incompatible if one is subordinate to the other, or if there is an inherent inconsistency between the duties of the two offices. Subordination is straightforward (you cannot be your own boss); inherent inconsistency requires looking at the duties.

Why does it matter that MOSA board members receive no compensation?

The AG read § 2041-b(3)'s bar on elected officials being MOSA employees as targeted at the appearance problem with paid positions. Board service is unpaid; that diluted appearance concern is what the AG read into the Legislature's choice to bar employee service but not board service. The unpaid character of board service shapes the inference.

What kinds of conflicts would require recusal?

Direct cross-claims: litigation between the county and MOSA; a vote on a county-MOSA contract where the legislator-board member is on both sides of the negotiation; a personnel matter where county-employee compensation is at issue and the same employee works on a MOSA-county matter. The conflict has to be specific to the particular matter; general overlap of subject matter is not enough.

Could the Legislature have barred this dual role?

Yes. It did so for MOSA employees in § 2041-b(3). It did not for board members. The AG read that distinction as meaningful.

Does this opinion apply to other solid waste management authorities?

The specific statutory analysis is MOSA-specific (Public Authorities Law §§ 2041-b et seq.). Other local solid waste authorities have their own enabling statutes. The compatibility doctrine itself (Ryan v Green, recusal as a remedy for case-specific conflicts) applies broadly, but the statutory-text analysis would have to be done for each authority.

Background and statutory framework

Public Authorities Law §§ 2041-b through 2041-t is the MOSA enabling statute, enacted by L 1987, ch 747. The structure is typical of local solid waste management authorities created in the late 1980s and early 1990s in response to landfill closure and waste-stream management challenges. The interlocking-with-counties structure (county-appointed and removable board, county financial support, county penalty-setting, county-MOSA contracting) reflects the State's view that solid waste is a regional problem that requires coordinated multi-county action.

The compatibility-of-offices analysis under Ryan v Green is the controlling doctrinal framework. The AG's opinions consistently treat membership on multiple boards as compatible where: (a) neither board supervises the other; (b) the duties are not inherently inconsistent; (c) the Legislature has not specifically barred the dual role; and (d) case-specific conflicts can be handled through recusal.

The historical precedent the AG cited (urban renewal agencies, IDAs, community colleges) reflects a long-standing Legislature preference for letting municipal officials serve on related public-authority boards. The 1987 MOSA statute fits within that pattern.

Citations

• Education Law § 6306(1) (one local-legislative-body member may serve on community college board of trustees).
• General Municipal Law § 553(4) (urban renewal agency members may be municipal officials).
• General Municipal Law § 554 (related urban renewal agency provisions).
• General Municipal Law § 555 (urban renewal agency provisions).
• General Municipal Law § 593 (Niagara Falls Urban Renewal Agency, board includes Mayor and Council).
• General Municipal Law § 856(4) (IDA members may be municipal officials/employees).
• General Municipal Law § 858 (IDA powers).
• Public Authorities Law § 2041-b (MOSA board composition).
• Public Authorities Law § 2041-b(1) (county-appointed and confirmed members).
• Public Authorities Law § 2041-b(2) (uncompensated board members).
• Public Authorities Law § 2041-b(3) (bar on elected officials as MOSA employees).
• Public Authorities Law § 2041-c (counties may advance money or property to MOSA).
• Public Authorities Law § 2041-d (MOSA powers).
• Public Authorities Law § 2041-d(10) (county penalty-setting for by-law violations).
• Public Authorities Law § 2041-d(11) (use of county officers/employees with consent).
• Public Authorities Law § 2041-f (transfer of county employees to MOSA).
• Public Authorities Law § 2041-s (county pledges to bondholders).
• Public Authorities Law § 2041-t (county-MOSA contracts and other provisions).
• Public Authorities Law § 2041-t(1) (contracts on solid waste collection, processing, disposal).
• Public Authorities Law § 2041-t(2) (county laws limiting competition).
• Public Authorities Law § 2041-t(4) (county gifts, grants, loans to MOSA).
• L 1987, ch 747 (MOSA creation).
• L 1969, ch 1030 (General Municipal Law § 856(4)).
• L 1964, ch 545 (General Municipal Law § 593).
• L 1962, ch 921 (General Municipal Law § 553(4)).
• L 1953, ch 271 (Education Law § 6306(1) amendment).
• People ex rel. Ryan v Green, 58 NY 295 (1874) (compatibility of office leading case).
• Op Atty Gen (Inf) No. 86-57 (IDA-municipal-official compatibility).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_99-7_pw.pdf

Original opinion text

EDUCATION LAW § 6306(1); GENERAL MUNICIPAL LAW §§ 553(4), 554,
555, 593, 856(4), 858; PUBLIC AUTHORITIES LAW §§ 2041-b, 2041-c,
2041-d, 2041-f, 2041-s, 2041-t; L 1987, CH 747; L 1969, CH 1030;
L 1964, CH 545; L 1962, CH 921; L 1953, CH 271.
A person may serve as a member of the legislative body of a
participating county and as a member of the board of directors of
the Montgomery-Otsego-Schoharie Solid Waste Management Authority.
Generally, he or she may exercise the statutory powers granted to
both entities.
February 17, 1999

James F. Dwyer, Esq.
Counsel, Montgomery-OtsegoSchoharie Solid Waste
Management Authority
Two Clinton Square
The Atrium, Suite 215
Syracuse, New York 13202

Informal Opinion
No. 99-7

Douglas E. Landon, Esq.
County Attorney
County of Montgomery
3 Market Street
Amsterdam, NY 12010
Dear Messrs. Dwyer and Landon:
You have requested an opinion regarding whether a member of
a participating county's governing board who concurrently serves
as a member of the board of the Montgomery-Otsego-Schoharie Solid
Waste Management Authority (the "Authority" or "MOSA") may vote
on matters before either board that impact the other entity and
whether the positions of member of a participating county's
governing board and member of the MOSA board are compatible.
MOSA board members are appointed as follows:
three members from the county of Montgomery
to be appointed by the chairman of the board
of supervisors and confirmed by the board of
supervisors of such county all of whom shall
be residents of the county and at least one
of whom shall be a resident of the city of
Amsterdam; three members from the county of
Otsego to be appointed by the chairman of the
board of representatives and confirmed by the

2
board of representatives of such county all
of whom shall be residents of the county and
at least one of whom shall be a resident of
the city of Oneonta; two members from the
county of Schoharie both of whom shall be
residents of the county, and who shall be
appointed by the chairman of the board of
supervisors and confirmed by the board of
supervisors of such county. Public
Authorities Law § 2041-b(1).
MOSA was established by Chapter 747 of the Laws of 1987.
The powers of MOSA are set forth in Public Authorities Law
§ 2041-d and include, inter alia, the power to plan, develop,
purchase and construct facilities for the disposal of solid waste
and the power to collect, receive, extract, transport, process,
dispose of, sell, store, convey, recycle and deal with solid
waste. In furtherance of these powers, MOSA may acquire
property, enter into contracts, borrow money and issue bonds.
Id., § 2041-d.
Although MOSA is an independent legal entity, the
interaction between the MOSA board and the county governing
boards is extensive. These interactions include:

1. The chairpersons of the participating counties'
   governing boards appoint members to the MOSA board. These
   appointments are confirmed by the county governing boards, who
   also have the power to remove MOSA board members from office for
   "inefficiency, neglect of duty or misconduct in office . . . ."
   Public Authorities Law § 2041-b(1).
2. Participating counties may by resolution advance sums of
   money to or on behalf of MOSA and give, grant, sell, convey,
   loan, license the use of or lease to MOSA any property or
   facility which is useful to MOSA. Id., § 2041-c(1), (2).
3. The legislative bodies of participating counties may
   prescribe penalties for violations of MOSA by-laws, including the
   failure to comply with any by-law requiring the payment of any
   fee in connection with the delivery of solid waste. Id., § 2041d(10).
4. Participating county governing boards may, upon request
   of the MOSA board, permit their officers and employees to be
   transferred to MOSA when needed to perform MOSA duties. Id.,
   § 2041-f.

3

5. With the consent of the chairperson of the legislative
   body of a participating county or the legislative body of any
   municipality therein, MOSA may use the officers or employees of
   these municipalities. Id., § 2041-d(11).
6. Participating county governing boards may enter into
   contracts between and among other participating counties and/or
   MOSA in relation to the collecting, receiving, transporting,
   storage, processing or disposal of solid waste. Id.,
   § 2041-t(1).
7. The legislative bodies of participating counties may
   adopt and amend local laws, ordinances and regulations imposing
   appropriate and reasonable limitations on competition with
   respect to collecting, receiving, transporting, delivering,
   storing, processing and disposing of solid waste. Id.,
   § 2041-t(2).
8. Participating county governing boards may pledge to and
   agree with any MOSA bondholders that the county will not act in
   any way to impair the rights and remedies of bondholders. Id.,
   § 2041-s.
9. The county governing boards may perform such other acts
   as shall be determined necessary or desirable to effectuate the
   purposes of MOSA, including the making of gifts, grants, loans or
   contributions to MOSA. Id., § 2041-t(4).
   We will first address whether the offices are compatible.
   In the absence of a constitutional or statutory prohibition
   against dual officeholding, one person may hold two 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
   readily identifiable. The latter is not 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 the principle equally covers an office and a position of
   employment or two positions of employment. The other is that
   where positions are compatible, a conflict of interests may arise
   out of the simultaneous holding of the positions. The conflict

4
can be avoided by declining to participate in the disposition of
the particular matter.
The Public Authorities Law neither precludes nor permits the
appointment of a member of a county governing board to the MOSA
board. It provides that "residents" of participating counties
must be appointed as members of MOSA's board. County legislators
are required to be residents of their counties. Such dual
officeholding is common among local public authorities. In the
case of some other local public authorities, established prior to
the establishment of MOSA, the Legislature specifically
authorized members of the legislative body of the municipality
for which the authority was formed to be members of the board of
directors of the authority. General Municipal Law § 553(4),
enacted by L 1962, ch 921 (any one or more members of the board
of directors of an urban renewal agency may be an official or an
employee of the municipality); § 593, enacted by L 1964, ch 545
(the mayor and all of the members of the City Council of the City
of Niagara Falls are members of the Niagara Falls Urban Renewal
Agency); § 856(4), enacted by L 1969, ch 1030 (any one or more
members of the board of directors of an industrial development
agency may be an official or an employee of the municipality for
which the authority was formed; see, Op Atty Gen [Inf] No. 8657); cf., Education Law § 6306(1), as amended by L 1953, ch 271
(one member of the local legislative body may be appointed to the
board of trustees of a community college).
The obvious intent of the requirement that residents of
participating counties be appointed to MOSA's board was to ensure
that each participating county has appropriate representation in
the decision making of the Authority. Certainly, county
legislators, as elected representatives, can perform this role.
Earlier legislation applicable to the many industrial development
agencies and urban renewal agencies located throughout the State
demonstrates that authorization of such dual officeholding is
common. Significantly, the Public Authorities Law provides "that
no elected official of a participating county or any municipality
therein shall be appointed as an employee of [MOSA]." Id.,
§ 2041-b(3). This prohibition on appointment of employees is an
indication that the Legislature did not intend to prohibit county
legislators from serving on MOSA's board of directors. The
Legislature focused on this subject and did not prohibit elected
municipal officials from serving as "officers" of MOSA. We
surmise that the purpose of this prohibition, applicable to
employees, was to prevent the appearance that elected municipal
officials may have exercised influence to become an employee of
MOSA. MOSA board members, on the other hand, receive no
compensation and are only reimbursed for expenses. Id.,

5
§ 2041-b(2). Therefore, we conclude that the Legislature has
allowed members of the legislative bodies of participating
counties to be MOSA board members.
Although there is extensive interaction between MOSA and
participating counties, such interaction is typical of local
public authorities whose board of directors may include
legislators of the municipalities in which the authorities
perform their duties. See, e.g., General Municipal Law §§ 554,
555, 858. The potential that the participating county
legislators who serve on the MOSA board will have conflicting
duties is minimized by the fact that MOSA was formed to perform
services for the participating counties. Also, taking into
consideration our conclusion that the Legislature has allowed
participating county legislators to be MOSA board members,
generally we believe that these dual officeholders may exercise
the powers given to them as members of both bodies. If under
specific circumstances, a person serving in both capacities
cannot act in the public interest, the remedy is recusal.
We conclude that a person may serve as a member of the
legislative body of a participating county and as a member of the
board of directors of the Montgomery-Otsego-Schoharie Solid Waste
Management Authority. Generally, he or she may exercise the
statutory powers granted to both entities.
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

YVONNE M. HOVE
Assistant Attorney General