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May 07, 2013

The positions of town board member and building administrator for the local housing authority held incompatible under the circumstances


The positions of town board member and building administrator for the local housing authority held incompatible under the circumstances
Informal Opinion of the Attorney General 2013-2

A town board member was hired as a building administrator by the housing authority board members and is currently is holding both positions. The town attorney asked the Attorney General for his views concerning this appointment.

Noting that the town board is vested with the power to appoint and to removal members of the housing authority board member, the Attorney General concluded that the positions of town board member and building administrator for the Authority were incompatible.

The Attorney General explained that the tenure of the members of the housing authority board depends on the determination of the town board. Accordingly, the housing authority board may be unable to impartially supervise its employee who also serves on the town board and thus wields a portion of the town board's appointment and removal power with respect to the housing authority board. Further, opined the Attorney General, “At the least, service as both a member of the town board and housing authority employee will create the appearance of impropriety, which should be avoided to maintain public confidence in the integrity of government.”

Additionally, the Attorney General said that the recusal of the housing authority employee from town board discussion and appointment or removal of housing authority board members would not remedy the incompatibility of the positions. When considering the appointing or removing a housing authority board member who takes part in determining the salary and the terms and conditions of their town board colleague's employment, the impartiality of the remaining town board members would not be free from doubt.

In this instance the housing authority board, which hires the Authority's employees, determines their qualifications and duties, and fixes their compensation, subject to the approval of the town board, results in the housing authority board members exercising these powers over the building administrator who also serves as town board member.

The opinion is posted on the Internet at:
http://www.ag.ny.gov/sites/default/files/opinion/2013-2_pw.pdf

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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