Does a New York town board of assessment review member have to recuse from voting on their own property's tax assessment?

Plain-English summary

A member of the Town of Clinton's board of assessment review filed a disclosure form stating he owned property whose assessment was before the board. The Town Attorney asked the AG two questions: must he recuse from board proceedings on his own property; and if he does not recuse, can he be removed or disciplined?

Recusal obligation. Real Property Tax Law § 523(1) requires assessment review board members to file disclosure forms identifying any direct or indirect interest in property before the board. § 523(3) defines what counts as an interest, including the member or spouse or minor child being the owner, an officer/director/partner/employee of an owner entity, or various other ownership and association relationships. But the statute does not require recusal; it only requires disclosure. A member who deliberately fails to disclose can be fined, but a member who discloses and then participates anyway is not penalized by the State statute.

The AG concluded the member is nonetheless obligated to recuse. The reason is constitutional and common-law, not statutory. A board member with a direct and substantial interest creates an actual conflict, and at minimum an appearance of impropriety, that vitiates board action.

The AG cited Tuxedo Conservation & Taxpayers Ass'n v Town Bd. of Town of Tuxedo, 69 AD2d 320 (2d Dept 1979), where the Second Department annulled a town board's approval of a major development because one board member had an undisclosed interest. The Second Department invoked Cardozo's Meinhard v Salmon opinion: a public official is held to "something stricter than the morals of the market place; not honesty alone, but the punctilio of an honor the most sensitive." For an assessment review member voting on his own assessment, the analogy is direct: any decision the board takes will be vulnerable to challenge on conflict grounds, and that fact alone makes recusal obligatory to preserve the board's work.

State-law discipline? No. § 523 does not create a recusal duty or a disciplinary mechanism for failure to recuse. Without an explicit statutory mechanism, the State law route to discipline is closed.

Local law and code of ethics route. A town has plenty of authority to fix the gap. Municipal Home Rule Law § 10(1)(ii)(a)(1) covers the powers and duties of municipal officers and employees. § 10(4) lets a local law include penalties. General Municipal Law § 806(1)(a) requires every municipality to adopt, by local law, ordinance, or resolution, a code of ethics. A code of ethics may require recusal in conflict situations and may assess penalties. The AG cited Op Atty Gen (Inf) No. 91-68 for the proposition that ethics codes with penalty provisions are valid.

A local law or code of ethics requiring recusal would not be preempted by RPTL § 523. The AG applied the Jancyn Mfg. v Suffolk Co., 71 NY2d 91 (1987) preemption framework: § 523 shows no legislative intent to preempt local regulation; in fact, a local recusal rule extends the protection that disclosure was designed to provide. The local rule would be consistent with, not at war with, the State scheme.

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

Why isn't recusal required by the State statute itself?

Because § 523 only requires disclosure, not recusal. The Legislature could have written a recusal mandate but did not. The AG identified the obligation through common-law conflict principles instead, which leaves enforcement to be created by local law.

What happens to a board's decision when a conflicted member participates?

It is vulnerable. Tuxedo shows that courts can annul a board's decision when a participating member had an undisclosed interest. Even a disclosed interest that the member ignores when voting creates vulnerability under the appearance-of-impropriety doctrine. A property owner who disagrees with the decision has a strong argument to overturn it on conflict grounds.

What can a town do to make recusal binding?

Pass a local law or adopt a code of ethics under General Municipal Law § 806(1)(a). The town can require recusal in defined conflict situations and impose penalties for failure to recuse. The AG identified this as the route to fill the gap left by § 523.

What kinds of interests trigger the disclosure rule?

§ 523(3) lists: the member, spouse, or minor child as the owner; an officer, director, partner, or employee of an owner or lessee entity; an officer, director, partner, or associate of a law firm or real estate firm with a financial interest in the owner or lessee; or a beneficial owner of stock in an owner or lessee corporation (with a publicly-listed-stock exception below a $10,000 threshold).

Does the same recusal rule apply to other municipal boards?

The opinion is specific to boards of assessment review, but the underlying common-law conflict doctrine is general. Town boards, planning boards, zoning boards of appeals, and other municipal bodies all face the same expectation: an official with a direct and substantial interest should recuse, and a participating-with-conflict decision is vulnerable to challenge.

Background and statutory framework

Real Property Tax Law § 523. Subdivision 1 requires disclosure by board of assessment review members. Subdivision 3 defines the kinds of interest that trigger disclosure. The statute creates a civil-fine sanction for knowing failure to disclose, but no recusal mandate.

Municipal Home Rule Law § 10. Subdivision (1)(ii)(a)(1) covers local laws on powers and duties of municipal officers. Subdivision (4) permits penalty provisions in local laws.

General Municipal Law § 806. Subdivision (1)(a) requires every municipality to adopt a code of ethics covering investments and private activities in conflict with official duties. § 809 is a parallel statute requiring disclosure of state and local officer interests in zoning or planning applications, the violation of which is a misdemeanor.

Case law. Tuxedo, 69 AD2d 320 (2d Dept 1979), is the leading appellate decision on board-member conflicts. The court invoked Cardozo's Meinhard v Salmon, 249 NY 458 (1928), on the heightened fiduciary standard. Jancyn Mfg. v Suffolk Co., 71 NY2d 91 (1987), provides the preemption framework that confirms local recusal rules are consistent with State law.

Prior AG opinions. Op Atty Gen (Inf) No. 91-68 (ethics codes may include penalties); Op Atty Gen (Inf) No. 89-41 (preemption analysis applied to municipal ethics laws).

Citations

• Real Property Tax Law § 523 (disclosure by assessment review board members); § 523(1) (filing requirement); § 523(3) (definition of interest).
• Municipal Home Rule Law § 10(1)(ii)(a)(1), (4) (powers over municipal officers); § 10(4) (penalty provisions).
• General Municipal Law § 806(1)(a) (mandatory code of ethics); § 809 (zoning and planning application disclosures).
• Tuxedo Conservation & Taxpayers Ass'n v Town Bd. of Town of Tuxedo, 69 AD2d 320 (2d Dept 1979) (annulment for board-member conflict).
• Meinhard v Salmon, 249 NY 458 (1928) (Cardozo's punctilio of honor standard).
• Jancyn Mfg. v Suffolk Co., 71 NY2d 91 (1987) (preemption framework).
• Op Atty Gen (Inf) No. 91-68; Op Atty Gen (Inf) No. 89-41 (prior AG opinions on ethics codes and preemption).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_99-42_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Page 1 of 3

Opn. No. 99-42
GENERAL MUNICIPAL LAW § 806(1)(a); MUNICIPAL HOME RULE LAW § 10(1)(ii)(a)(1) and
(4); REAL PROPERTY TAX LAW § 523.
A member of a board of assessment review who owns property before the board for review is obligated
to recuse himself from participating in board proceedings with respect to that property to preserve the
validity of action taken by the board and maintain public confidence in the integrity of government.
December 31, 1999
Thomas P. Halley, Esq.
Town Attorney
Town of Clinton
21 Alden Road
Poughkeepsie, New York 12603

Informal Opinion
No. 99-42

Dear Mr. Halley:
In your letter and a subsequent telephone conversation, you have asked whether a member of the
board of assessment review, who files a disclosure form stating that he is the owner of property under
review by the board, is required to recuse himself from participating in board review of the assessment
of the property, and if he is, whether he may be removed or disciplined for failure to do so. We conclude
the subject board member has an obligation to recuse himself to preserve the validity of action taken by
the board, but under State law he may not be disciplined for failure to do so. Recusal could be required
by local law or in a code of ethics. The local law or code could provide penalties to enforce compliance.
Real Property Tax Law § 523(1) requires members of boards of assessment review to file
disclosure forms setting forth any direct or indirect interest they have in property before the board for
review. Id., § 523(3). A member is deemed to have a direct or indirect interest in property before the
board for review when the member, his or her spouse, or any of his or her minor children:
(a) is the owner of such property; or
(b) is an officer, director, partner or employee of an entity which is an owner or lessee of
such property; or
(c) is an officer, director, partner or associate of a law firm or real estate firm which has a
financial interest with the owner or lessee of such property; or
(d) legally or beneficially owns or controls stock of a corporation which is an owner or
lessee of such property, provided, however, ownership of stock shall not constitute an
interest where such stock is listed on a major stock exchange or is sold on the over the
counter market and the value thereof is less than ten thousand dollars. Id.
Members who knowingly and intentionally fail to disclose an interest in such property are subject to
civil fines. Id. The statute does not, however, require board members who disclose an interest in
property to recuse themselves from participating in board action regarding that property and therefore

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OPINIONS OF THE ATTORNEY GENERAL

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does not penalize failure to do so.
In our view, the subject board member nevertheless should recuse himself because he has a direct
and substantial conflict of interest in the board's review of property he owns. There is, at the very least,
an appearance of impropriety if the board member participates in this review. Recusal is thus necessary
to maintain public confidence in the integrity of government. Recusal is also necessary to preserve the
validity of action taken by the board.
The board member's participation will render action taken by the board of assessment review
vulnerable to attack. In Tuxedo Conservation & Taxpayers Ass'n v Town Bd. of Town of Tuxedo, 69
AD2d 320 (2d Dept 1979), the Sterling Forest Development Corporation and another company filed an
application to build a residential unit, referred to as a "Planned Integrated Development." The
development was subject to approval by the town board. Sterling was a wholly owned subsidiary of City
Investing Corporation. A board member voting in favor of the development in a three-to-two vote by the
town board was the vice-president of an advertising agency which had City Investing Corporation as one
of its corporate clients. The court noted the clear inference that if the application were approved, the
advertising agency would be a strong contender to obtain all advertising contracts for the $200 million
project. Id., at 323. The board member refused to disqualify himself but, recognizing the existence of an
apparent conflict of interest, he sought an opinion from the local ethics committee, which never
responded to his inquiry. Tuxedo, at 323. Upon a challenge by a taxpayers' association, the court
annulled the decision of the town board based on the board member's participation and other grounds.
As in the matter before us for review, in Tuxedo state law required only disclosure. Applications
under the zoning and planning regulations of a municipality must identify any state or local officer with
an interest in the application. See General Municipal Law § 809. A person knowingly and intentionally
violating the provision is guilty of a misdemeanor. Id. In defense of its decision, the town board asserted
that the subject board member did not violate section 809 of the General Municipal Law by failing to
disclose his interest in the application. Tuxedo, 69 AD2d at 324. The court found that defense
unpersuasive reasoning:
Reverting now to the December 28, 1977 meeting of the Town Board, we deplore Mr.
Martineau's participation in the vote. Not because of the result, but that he voted at all, even
though it may have meant putting the matter over until the advent of the new year. We
direct his attention to the soaring rhetoric of Chief Judge CARDOZO in his opinion in
Meinhard v Salmon, 249 N.Y. 458, 464 164 N.E. 545, 546:
"A trustee is held to something stricter than the morals of the market place. Not
honesty alone, but the punctilio of an honor the most sensitive, is then the
standard of behavior."
. . . For like Caesar's wife, a public official must be above suspicion. Id., at 324.
Based upon this conflict and for other reasons, the court affirmed the decision below annulling the town
board's decision.
Here, the subject board member has a direct and substantial interest as the owner of property
subject to the board's assessment review. Any action by the board on this property, with the member's
participation, will be similarly vulnerable to legal challenge. A member of a public board should not, by
participating despite such a conflict, jeopardize the decision of the board.

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OPINIONS OF THE ATTORNEY GENERAL

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As in Tuxedo, compliance with the disclosure requirement in section 523(1) of the Real Property
Tax Law does not satisfy the board member's responsibilities. In the event of a minor conflict, disclosure
alone may be satisfactory. There is nothing, however, in the statute that preserves the validity of action
by the board of assessment review in the event a participating member has a substantial and direct
conflict like the one before us for review. Accordingly, a member of a board of assessment review who
owns property is obligated to recuse himself from participating in board proceedings relating to that
property to preserve the validity of action taken by the board and maintain public confidence in the
integrity of government.
We note that a municipality may enact a local law explicitly requiring that members of public
boards recuse themselves when they have interests, as defined in the law, in matters before the boards
for review. Such a local law is within the authority of a municipality to enact local laws, consistent with
the Constitution and any general laws, relating to the powers, duties, qualifications and other terms and
conditions of employment of its officers and employees. See Municipal Home Rule Law § 10(1)(ii)(a)
(1). Also, municipalities are required to adopt, by local law, ordinance, or resolution, codes of ethics
setting forth, for the guidance of their officers and employees, the standards of conduct reasonably
expected of them. See General Municipal Law § 806(1)(a). The code is required to include provisions
regarding the holding of investments in conflict with official duties and other private activities and
interests which conflict with their duties. Id. A code of ethics may require recusal when a member of a
public board has a conflict of interest. Id. Significantly, a local law or code of ethics establishing such
standards may assess penalties to enforce its provisions. See Municipal Home Rule Law § 10(4); Op
Atty Gen (Inf) No. 91-68.
Such a local law or code of ethics, as it would apply to members of boards of assessment review,
would neither be preempted by nor inconsistent with section 523(1) of the Real Property Tax Law. See
Op Atty Gen (Inf) No. 89-41 (citing and discussing, Jancyn Mfg. v Suffolk Co., 71 NY2d 91 [1987]).
The provisions of section 523(1) of the Real Property Tax Law do not manifest an intent to preempt
regulation of conflict of interests facing members of boards of assessment review. A local law or code of
ethics requiring recusal and assessing penalties for violations would extend the protection of the state
statute, which is designed to preserve the integrity of governmental operations. Id. Section 523(1) grants
no right to a member of a board of assessment review to be free from further regulation. Id. Therefore,
the local law or code of ethics would be consistent with section 523(1). Id.
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 Solicitor General
In Charge of Opinions

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