Can someone serve on a New York city's board of ethics and on the local school board at the same time, or are those positions incompatible?

Plain-English summary

A school district lawyer asked the AG whether a member of the Middletown City Board of Education could also serve on the City's Board of Ethics. The narrower legal question is whether a Board of Ethics member counts as a "public officer" holding a "city office," because Education Law § 2502(7) bars members of small-city school boards (cities under 125,000) from holding a city office. The AG concluded: yes, the Board of Ethics member is a public officer, and the two positions cannot be held simultaneously.

The "public officer" test. New York courts use a multi-part test, most clearly stated in Matter of O'Day v. Yeager, 308 N.Y. 580, 586 (1955): a public officer is one whose position is created by statute (or local enactment exercising statutory authority), whose powers and duties are prescribed by law, and who exercises a high degree of initiative and independent judgment. People ex rel. Hoefle v. Cahill, 188 N.Y. 489, 494 (1907), added that the position must exercise some part of the sovereign power; if it does not, the role is one of employment, not office.

How the City of Middletown Board of Ethics scores. The AG ran the Middletown board through the test:

• Created by statute: yes. General Municipal Law § 808(3) authorizes the board; City Code § 48-6 establishes it.
• Powers and duties prescribed by law: yes. General Municipal Law Article 18 and City Code § 48-6 define what the board does.
• Independent judgment and sovereign power: yes. The board promulgates its own rules and procedures (GML § 808(2)-(3); City Code § 48-6(A)). It issues opinions to city officers and employees on the ethics laws. Those opinions are made without supervision from any other city body or outside board of ethics. They are the City's only and final determinations on the ethics questions in front of it.

The advisory-task-force counter-argument. The opinion considered the argument that "advisory" opinions do not amount to exercising sovereign power. The 2d Department in Matter of Poughkeepsie Newspaper Div. v. Mayor's Intergov'tal Task Force, 145 A.D.2d 65 (2d Dep't 1989), held that an advisory task force whose members only made recommendations to the mayor was not a body of public officers. The AG distinguished the Middletown board: although its opinions are nominally advisory, no other city body has authority to issue them, so they are the city's only and final ethics determinations. That changes them from recommendations to a higher official into the city's effective ruling.

Education Law § 2502(7) and Article 51. Article 51 governs city school districts in cities with fewer than 125,000 people. Education Law § 2501 sets the population threshold; § 2502(7) bars board of education members from holding "any city office" (with carve-outs for police and fire offices). The purpose, per the 1950 Bill Jacket, was fiscal independence: separate school district governance from the city's general government.

Holding. Because the Middletown Board of Ethics member is a public officer holding a city office, Education Law § 2502(7) prevents that person from also serving on the school district's board of education.

Currency note

This opinion was issued in 2008. 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

Does this apply to school boards in larger cities (over 125,000)?
No, not directly. Article 51 applies to small city school districts. Larger cities (Albany, Buffalo, Rochester, Syracuse, Yonkers, New York City) have separate Education Law articles. The compatibility analysis would proceed differently for those.

Would the analysis change if the city ethics board could only render strictly non-binding recommendations to the city council, which would then act?
Possibly. The AG specifically distinguished that scenario by relying on the Poughkeepsie Task Force case. If another city body had real authority to override or replace the ethics board's reasoning, the "final determination" reading would weaken and the member might not be an officer.

What about town or village ethics board members?
The AG's analysis is specific to Education Law § 2502(7) ("city office"). It does not categorically resolve compatibility for town or village ethics board members. The general public-officer test applies, but the dual-office-holding rule would have to come from a different statute.

Could a county board of ethics member sit on a city school board?
A county office is not a "city office" under § 2502(7), so the bar in this opinion would not apply. Whatever other compatibility rules apply (common-law incompatibility, county code provisions) would have to be checked.

If a school board member is appointed to the ethics board, which seat do they lose?
The opinion does not directly say. Under common-law incompatibility doctrine, accepting an incompatible office typically operates as a resignation from the earlier office. The school board would need to verify the timing and the relevant statutory or charter mechanics.

Background and statutory framework

Article 51 of the Education Law. Governs city school districts in cities under 125,000. Section 2501 sets the threshold. Section 2502(7) bars school board members from holding any city office, with a narrow exception for police/fire offices. Article 51's purpose was to make small-city school districts fiscally and structurally independent from city government.

General Municipal Law Article 18. The municipal ethics law. Section 808(1)-(3) authorizes counties, cities, towns, and villages to establish boards of ethics and prescribes their general structure. Section 808(4) carves out: when a municipality has its own ethics board, a county ethics board cannot act on that municipality's officers and employees unless the local board refers the matter.

City Code of Middletown § 48-6. Establishes the Middletown Board of Ethics, with five mayor-appointed members serving three-year terms, no salary, expense reimbursement, and authority to promulgate rules and render opinions on the City Code of Ethics.

Public Officers Law § 2. Defines "local officer" to include "every officer of a political subdivision or municipal corporation of the state."

Prior AG and case law on the public-officer test. O'Day v. Yeager (1955) and Hoefle v. Cahill (1907) are the framing cases. Ferraro v. City School District of Schenectady; Op. Att'y Gen. 96-2 (city corporation counsel is a public officer); Op. Att'y Gen. (Inf.) 90-80 (city sealer of weights and measures) confirm specific applications.

Citations

• Education Law Article 51 (small city school districts); § 2501 (population threshold); § 2502(7) (board of education member cannot hold city office, except police/fire).
• General Municipal Law Article 18 (municipal ethics); § 808(1)-(2) (board structure and rule-making); § 808(3) (authorization to establish board); § 808(4) (county ethics board scope when local board exists).
• City Code of Middletown § 48-6, § 48-6(A), § 48-6(B) (establishment, rule-making, advisory opinions to officers and employees).
• Public Officers Law § 2 (definition of local officer).
• Matter of O'Day v. Yeager, 308 N.Y. 580, 586 (1955) (public officer definition).
• People ex rel. Hoefle v. Cahill, 188 N.Y. 489, 494 (1907) (sovereign-power requirement).
• Lake v. Binghamton Hous. Auth., 130 A.D.2d 913, 914 (3rd Dep't 1987).
• Haller v. Carlson, 42 A.D.2d 829 (4th Dep't 1973).
• Dawson v. Knox, 231 A.D. 490, 492 (3rd Dep't 1931) (distinction between officer and employee).
• Ferraro v. City School District of the Schenectady, 69 Misc. 2d 800, 801.
• Matter of Poughkeepsie Newspaper Div. of Gannett Satellite Info. Network v. Mayor's Intergov'tal Task Force, 145 A.D.2d 65, 67 (2d Dep't 1989) (advisory task force members not public officers).
• Kingston Assoc. v. La Guardia, 156 Misc. 116, 123 (Sup. Ct. N.Y. Cty. 1935).
• Op. Att'y Gen. 96-2 (city corporation counsel is public officer).
• Op. Att'y Gen. (Inf.) 90-80 (city sealer of weights and measures).
• Op. Att'y Gen. (Inf.) No. 90-54 (conservation advisory council members not public officers).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2008-5_pw.pdf

Original opinion text

Education Law Article 51, §§ 2501, 2502(7); General Municipal Law
Article 18, §§ 808(1), 808(2), 808(3), 808(4); City Code of
Middletown §§ 48-6, 48-6(A), 48-6(B); Public Officers Law § 2

Members of the city board of ethics are city officers and thus by virtue of Education Law § 2502(7), may not simultaneously serve on the school district board of education.

June 10, 2008

James P. Drohan
Counsel for Enlarged City
School District of Middletown
2517 Route 52
Hopewell Junction, New York 12533

Informal Opinion
No. 2008-5

Dear Mr. Drohan:

You have requested an opinion regarding whether a member of the board of education of the enlarged city school district of Middletown may simultaneously serve on the city of Middletown board of ethics. We understand that the more particular question is whether a member of the board of ethics is a public officer for purposes of Education Law § 2502(7). As explained more fully below, we are of the opinion that a member of the board of ethics is a public officer and therefore cannot simultaneously serve as a member of the school district's board of education.

I. BACKGROUND

General Municipal Law § 808(3) grants the authority to a city, at its option, to establish a board of ethics. That statute provides a general framework for such a board. You have advised us that the city of Middletown has established a board of ethics pursuant to this authority, and has granted to the board all the powers and duties prescribed in article 18 of the General Municipal Law. See City Code of Middletown § 48-6. The City's board of ethics is composed of five mayoral-appointed members who serve for three-year terms. City Code of Middletown § 48-6. The members receive no salary or compensation for their services, but are reimbursed by the City for actual and necessary expenses. Id. The board of ethics is empowered by both City Code § 48-6 and General Municipal Law § 808(3) to promulgate its own rules and regulations as to its forms and procedures and the maintenance of its records of opinions and proceedings. The board elects annually from its membership its chairman and secretary. See City Code of Middletown § 48-6.

The board's duties include rendering advisory opinions to officers and employees of the City with respect to article 18 of the General Municipal Law and the City's code of ethics. See General Municipal Law § 808(1)-(3); City Code of Middletown § 48-6(B). Counsel for the City has advised us that the opinions rendered by the board of ethics are the only and final determinations made by the City interpreting and applying article 18 and the City's code of ethics.

You have explained that the city of Middletown has fewer than 125,000 inhabitants. The provisions of article 51 of the Education Law therefore apply to the school district. Education Law § 2501. One of the primary purposes of article 51 was to create fiscally independent and responsible school districts separate and apart from the city government. See Letter of the Department of Audit and Control (Apr. 5, 1950), reprinted in Bill Jacket for ch. 762 (1950), at 14. Thus, Education Law § 2502(7), part of article 51, prohibits a member of a board of education of a city school district governed by the provisions of article 51 from holding "any city office." Whether the positions of school board member and city board of ethics member are statutorily incompatible therefore depends on whether a member of the city board of ethics holds a "city office."

II. ANALYSIS

The term "city office" as used in Education Law § 2502(7) is a subcategory of "public office." See Ferraro v. City School District of the Schenectady, 69 Misc. 2d 800, 801 (stating that the petitioner as an officer of the city held a "public, city office"); Op. Att'y Gen. 96-2 (city corporation counsel was public officer and thus could not simultaneously be a member of the school district's board of education pursuant to Education Law § 2502(7); Op. Att'y Gen. (Inf.) 90-80 (same conclusion with respect to city sealer of weights and measures); see also Public Officers Law § 2 (including "every officer of a political subdivision or municipal corporation of the state" within the definition of a "local officer").

While the distinction between a "public officer" and any other public employee is "not too clear," Dawson v. Knox, 231 A.D 490, 492 (3rd Dep't 1931), a "public officer" has been defined as "an independent officer whose position is created, and whose powers and duties are prescribed, by statute and who exercises a high degree of initiative and independent judgment." Matter of O'Day v. Yeager, 308 N.Y. 580, 586 (1955); see Lake v. Binghamton Hous. Auth., 130 A.D.2d 913, 914 (3rd Dep't 1987). It is also well-established that the authority to exercise some portion of the sovereign power is essential to being a public officer and, where no such authority exists, a position is not likely an office but one of employment. People ex rel. Hoefle v. Cahill, 188 N.Y. 489, 494 (1907); see also Haller v. Carlson, 42 A.D.2d 829 (4th Dep't 1973). Here, the board of ethics is created by and its powers and duties are derived from the City Code of Middletown and General Municipal Law. The board acts independently with the authority to promulgate its own rules and regulations controlling the forms and procedures used. See General Municipal Law § 808(2)-(3); City Code of Middletown § 48-6(A). The board of ethics issues opinions to officers and employees of the City; these opinions are based upon the board's independent interpretation, analysis, and application of article 18 of the General Municipal Law and the City's code of ethics. These determinations are made without interference or supervision or direction from any other part of the city government or from any other outside board of ethics. See General Municipal Law § 808(4) (county board of ethics may not act with respect to the officers and employers of any municipality located within the county when the municipality has established its own board of ethics except when a matter is referred by the local board of ethics). Its determinations are the only and the final determinations made on behalf of the City with respect to article 18 and the City's code of ethics. We therefore conclude that the board's members are properly considered officers.

It might be argued that because the opinions issued by the board are advisory, the members do not exercise independent authority and are therefore not public officers. Thus in Matter of Poughkeepsie Newspaper Div. of Gannett Satellite Info. Network v. Mayor's Intergov'tal Task Force on New York City Water Supply Needs, 145 A.D.2d 65, 67 (2d Dep't 1989), the court held that members of an advisory task force were not public officers because they had no independent authority to act, but merely made recommendations to the mayor. See id. at 67; see also Kingston Assoc. v. La Guardia, 156 Misc. 116, 123 (Sup. Ct. N.Y. Cty. 1935); Op. Att'y Gen. (Inf.) No. 90-54 (the roles of a conservation advisory council and conservation board were to advise and make recommendations to other municipal officers and municipal bodies and thus the members were not public officers).

We believe, however, that the function of the City's board of ethics in rendering opinions is distinguishable from a board authorized only to advise government officials. Although the board of ethics issues opinions that are characterized as advisory, it acts independently of the appointing authority and, because no other body is granted the authority to perform its function, its opinions constitute the only and final determination of the City, unlike the advice provided by a task force to a mayor. In summary, therefore, we conclude that the members of the City's board of ethics are public officers of the City. Consequently, we further conclude that by virtue of Education Law § 2502(7), members of the Middletown City School District board of education may not simultaneously serve on the City's board of ethics.

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