NYCL AGO 96-3.

• Case Date: February 21, 1996
• Court: New York

New York Attorney General Opinions 1996. AGO 96-3. February 21, 1996Informal Opinion No. 96-3David P. O'Hara, Esq. Town Attorney Town of Cazenovia 9 Albany Street Cazenovia, NY 13035TOWN LAW § 64(5).A member of the town board may resign from the board in order to be appointed to fill a vacancy in the position of zoning enforcement officer.Dear Mr. O'Hara: You have informed us that your zoning enforcement officer is planning to retire around March of 1996 and that one of the current town board members, who at that time will be in the third year of his four-year term on the board, is interested in becoming the new zoning enforcement officer. You have indicated that this individual, in addition to his experience on the town board, has also been a member of the town planning board. You have inquired whether the town board member may resign from the board and then be appointed by the town board to the position of zoning enforcement officer once the vacancy has occurred. While the Town Law has established an exception, it is necessary to set forth the general rule of law applicable to such appointments. Common law voids the appointment by a board of a member of that board to a public office or position of employment. Wood v Town of Whitehall, 120 Misc 124 (Sup Ct Washington Co), affd, 206 App Div 786 (3d Dept 1923). While the rule in Whitehall applies to the appointment of a current board member by that board, the reasoning of the Court is relevant here:

When public officers, such as the members of a town board, are vested by the legislature with power of appointment to office, a genuine responsibility is imposed. It must be exercised impartially, with freedom from a suspicion of taint or bias which may be against the public interest. An appointing board cannot absolve itself from the charge of ulterior motives when it appoints one of its own members to an office. It cannot make a difference whether or not his own vote was necessary to the appointment. The opportunity improperly to influence the other members of the board is there. No one can say in a given case that the opportunity is or is not exercised. What influenced the other members to vote as they did, no one knows except themselves. Were their motives proper, based solely on the fitness of the appointee? They may have been. Were they improper, based on the

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