Can a single person serve on a New York town zoning board of appeals and also work as the ZBA's secretary, when the secretary is hired by the board itself?

Plain-English summary

The Town of Red Hook had a ZBA member who had also been working as the ZBA's secretary since 1989. The Town Board appointed her to the ZBA in 1989; the ZBA then re-selected her as its secretary every year after that. The town attorney asked the AG whether the dual role was permissible.

The AG said no, citing a long-standing public-policy rule from Wood v. Town of Whitehall (Sup. Ct. 1923, aff'd 3d Dep't 1923). In Wood, a town board appointed one of its own members as police justice. The court held the appointment violated public policy for two reasons: (1) when a board appoints one of its own members to another position, the public reasonably perceives partiality; and (2) the appointment is in effect the board appointing itself, an undesirable result. Macrum v. Hawkins (Court of Appeals 1933) confirmed the principle.

The AG had applied the rule across many situations: a county legislature can't appoint one of its members to the planning commission; a town recreation commission can't appoint one of its members as assistant to the superintendent; a town board can't appoint one of its members to part-time park maintenance work. Town Law § 267-a, which governs ZBA operations, contained no special statutory exception. The 1987 AG opinion had recognized that a local legislative body can adopt a local law overriding Wood if it finds, based on local conditions, that the public interest is served, but the AG noted that such laws typically work only in very small communities with insufficient personnel.

Town Law § 267-a(3) provides another way out: the town board can authorize the ZBA to "call upon any department, agency or employee of the town for such assistance as shall be deemed necessary." So the town can have a town employee perform the ZBA's secretarial work without putting that employee on the ZBA. The town attorney described the ZBA secretary's duties as "the usual duties involved in most secretarial positions," which suggests the work could be assigned to a town clerk or similar town-employee position.

For the past acts of the dual-role officeholder, the de facto officer doctrine protects third parties. Ontario v. Western Finger Lakes Solid Waste Mgmt. Authority (4th Dep't 1990) is the standard citation. Decisions made by the ZBA while the dual-role member served as both member and secretary are not subject to collateral attack on this ground; the work she did was valid as to applicants and the public.

Currency note

This opinion was issued in 2005. 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

Q: What is the Wood v. Whitehall rule?
A: It's a common-law public-policy rule, stated in a 1923 Third Department case, that a board generally cannot appoint one of its own members to another position. The two reasons: (1) the appearance that the board is not acting impartially when choosing among candidates; (2) the result is effectively the board appointing itself to the second position.

Q: Does the rule have any exceptions?
A: Yes. State statute can authorize a board to appoint one of its members (Town Law § 64(5) lets a town board member resign and then be appointed to fill a town office vacancy). And a local law, supported by a finding of public interest based on local conditions, can override Wood. The 1994 and 1991 AG opinions describe local laws appropriate in small communities where suitable candidates are scarce.

Q: Can the town fix this without a local law?
A: Yes. Town Law § 267-a(3) lets the town board authorize the ZBA to call on any town department, agency, or employee for assistance. If the secretarial work is primarily routine, the town can assign a town-employee secretary or clerk to support the ZBA without making that employee a ZBA member.

Q: Are the ZBA decisions made during the dual-role period invalid?
A: No. The de facto officer doctrine, recognized in Ontario v. Western Finger Lakes Solid Waste Mgmt. Authority, protects third parties from being harmed by irregularities in an officer's appointment. The ZBA's substantive decisions are not subject to collateral attack on this ground.

Q: Could the AG's opinion have come out differently if the dual role had been initiated by Town Board action rather than the ZBA itself?
A: That would have been a different analysis. Wood targets self-appointment by a board. If the town board (an external body) appoints a ZBA member to also serve as ZBA secretary, the self-appointment problem doesn't arise. But other compatibility-of-office and conflict-of-interest issues might.

Q: Why is this not just a compatibility-of-office question?
A: The AG noted at the end of the opinion that the simultaneous holding of the two positions was "improper" under Wood regardless of whether the positions were otherwise compatible under common-law principles. The Wood analysis is a separate inquiry from compatibility.

Background and statutory framework

Town Law § 267(2) gives the town board authority to designate a chairperson of the ZBA. Town Law § 267-a sets out the ZBA's general operating framework, including its authority to use town personnel under § 267-a(3). Town Law § 64(5) is a narrow statutory exception to the Wood rule: a town board member can resign and then be appointed by the board to fill a town-office vacancy.

The Wood rule itself traces to Wood v. Town of Whitehall, 120 Misc. 124 (S. Ct. 1923), aff'd, 206 App. Div. 786 (3d Dep't 1923). The Third Department affirmed without opinion, but the Supreme Court's reasoning has been the controlling source ever since. Macrum v. Hawkins, 261 N.Y. 193, 201-02 (1933), referenced the principle and applied it in the school-trustee context.

Prior AG opinions applied Wood in many specific situations: Op. Att'y Gen. (Inf.) No. 99-38 (county legislature cannot appoint one of its members to county planning commission); Op. Att'y Gen. (Inf.) No. 83-38 (town recreation commission cannot appoint one of its members as assistant to superintendent); Op. Att'y Gen. (Inf.) No. 81-51 (town board cannot appoint one of its members to part-time town park maintenance).

The local-law-override path comes from Op. Att'y Gen. (Inf.) No. 87-47, which recognized that a local legislative body could overcome Wood "by enacting a local law upon its finding, based on local conditions, that the public interest would be served." Op. Att'y Gen. (Inf.) No. 94-2 and No. 91-14 described the kinds of small-municipality situations where the local law could be justified, typically because the community lacks enough residents able or willing to serve in the positions.

The de facto officer doctrine, recognized in Ontario v. Western Finger Lakes Solid Waste Mgmt. Authority, 167 A.D.2d 848, 849 (4th Dep't 1990), protects the validity of an irregularly appointed officer's official acts as to third parties. The doctrine prevents collateral attacks on past decisions but does not insulate the officer's ongoing service.

Citations and references

Statutes:

• Town Law § 64 (powers of town board)
• Town Law § 64(5) (resignation and reappointment exception)
• Town Law § 267 (zoning board of appeals)
• Town Law § 267(2) (designation of chairperson)
• Town Law § 267-a (ZBA general powers)
• Town Law § 267-a(3) (authority to call on town departments and employees)

Cases:

• Wood v. Town of Whitehall, 120 Misc. 124 (S. Ct.), aff'd, 206 App. Div. 786 (3d Dep't 1923)
• Macrum v. Hawkins, 261 N.Y. 193 (1933)
• Ontario v. Western Finger Lakes Solid Waste Mgmt. Authority, 167 A.D.2d 848 (4th Dep't 1990)

Prior AG opinions:

• Op. Att'y Gen. (Inf.) No. 99-38 (county planning commission self-appointment)
• Op. Att'y Gen. (Inf.) No. 94-2 (local law override in small communities)
• Op. Att'y Gen. (Inf.) No. 91-14 (same)
• Op. Att'y Gen. (Inf.) No. 87-47 (local law override authority)
• Op. Att'y Gen. (Inf.) No. 83-38 (recreation commission self-appointment)
• Op. Att'y Gen. (Inf.) No. 81-51 (town board park maintenance self-appointment)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2005-17_pw.pdf

Original opinion text

TOWN LAW §§ 64, 267, 267-a.

Where the secretary to the Zoning Board of Appeals (ZBA) is appointed by the ZBA, a member of the ZBA may not simultaneously serve as secretary to the ZBA.

July 26, 2005

Albert R. Trezza
Town Attorney
Town of Red Hook
7340 South Broadway
Red Hook, New York 12571

Informal Opinion
No. 2005-17

Dear Mr. Trezza:

You have requested an opinion regarding whether one person may simultaneously serve on the town Zoning Board of Appeals ("ZBA") and as the ZBA's secretary. You have explained that the members of the ZBA are appointed by the Town Board and are not compensated. You have also stated that the members of the ZBA annually select the secretary to the ZBA, who receives compensation in an amount determined by the Town Board. You have described the duties of the ZBA secretary and have stated that the day-to-day oversight of her performance as secretary is by the ZBA chairperson, an individual designated by the Town Board pursuant to Town Law § 267(2).

You have explained that the individual currently serving on the town ZBA and serving as its secretary was initially selected by the ZBA as its secretary in 1987. Subsequently, the Town Board appointed her a member of the ZBA. She has continued to serve in both positions since 1989, having been selected by the ZBA as its secretary each year.

We are of the opinion that the same person may not serve as a member of the ZBA and as secretary to the ZBA under the circumstances you have described. In the absence of statutory authority to do so, the appointment by the ZBA of one of its members to another position violates the established rule enunciated in Wood v. Town of Whitehall, 120 Misc. 124 (S. Ct.), aff'd, 206 App. Div. 786 (3d Dep't 1923); see also Macrum v. Hawkins, 261 N.Y. 193, 201-02 (1933). In Wood, the court held that the appointment by the town board of one of its members to the position of police justice violated public policy. Id. at 130. The court gave two reasons for this conclusion: first, that the appointment by a board of one of its members necessarily creates the appearance that the board has not acted impartially, id. at 125, and second, that the appointment of one of its members is in effect the same as the board appointing itself to the position, an undesirable result, id. at 126.

We have applied this principle in previous opinions to conclude, for example, that a county legislature may not appoint one of its members to the county planning commission, Op. Att'y Gen. (Inf.) No. 99-38; that a town recreation commission may not appoint one of its members to a position of employment as assistant to the recreation superintendent, Op. Att'y Gen. (Inf.) No. 83-38; and that a town board may not appoint one of its members to part-time employment to maintain a town park, Op. Att'y Gen. (Inf.) No. 81-51.

While the individual currently serving in both positions initially served as secretary to the ZBA and was subsequently appointed to the ZBA, pursuant to your local law she was selected each year as secretary to the ZBA by the ZBA. We are not aware of a provision of state law that would authorize the appointment by the ZBA of one of its members to a second position. See Town Law § 267; cf. Town Law § 64(5) (town board member may resign membership on town board and subsequently be appointed by town board to fill vacancy in any town office). Consequently, each annual appointment to the position of ZBA secretary by the ZBA of which she was a member contravened the principle enunciated in Wood. With respect to the past actions of the individual holding both positions, we note that under the de facto officer doctrine, the acts of one who carries out the functions of public office under color of authority are generally valid as to third parties and the public, and thus are immune from collateral attack, notwithstanding irregularities in the manner of appointment. Ontario v. Western Finger Lakes Solid Waste Mgmt. Authority, 167 A.D.2d 848, 849 (4th Dep't 1990). We therefore conclude that her simultaneous holding of the positions of ZBA member and secretary to the ZBA is improper. In light of this conclusion, we need not consider whether the positions are otherwise compatible.

We have previously concluded that a local legislative body may overcome the common law principle set forth in Wood by enacting a local law upon its finding, based on local conditions, that the public interest would be served. Op. Att'y Gen. (Inf.) No. 87-47. We have opined that such a local law may serve the public interest, for example, in a small municipality without sufficient residents willing to serve in specific positions or who possess the necessary expertise. Op. Att'y Gen. (Inf.) No. 94-2; Op. Att'y Gen. (Inf.) No. 91-14. We note, however, that the Town Board may authorize the ZBA to "call upon any department, agency or employee of the town for such assistance as shall be deemed necessary," Town Law § 267-a(3), and that you have characterized the duties of the ZBA secretary as "the usual duties involved in most secretarial positions." It therefore appears unlikely that a local law permitting this individual to serve both as ZBA member and as secretary to the ZBA could be deemed to serve the public interest.

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions