Opinion 2009 - 1


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

 

CONFLICTS OF INTEREST -- Codes of Ethics (requiring disclosure and recusal by fire district commissioner whose spouse is to be appointed treasurer) -- Family Relationships (spouse of fire district commissioner as appointed treasurer)
FIRE DISTRICTS --Treasurer (spouse of fire district commissioner as appointed treasurer)

GENERAL MUNICIPAL LAW §§ 800(3), 801, 806; TOWN LAW §§ 174, 175: There is no statutory or common law prohibition against the appointment of the spouse of a member of a board of fire commissioners to the office of fire district treasurer. The fire district, however, should ascertain whether its code of ethics requires a member of the board of fire commissioners whose spouse is to be appointed as treasurer to disclose the relationship, recuse himself or herself from discussions on the appointment and on other resolutions relating specifically to the treasurer, and abstain from voting on such matters. Even if the fire district's code of ethics does not require disclosure, abstention and recusal, the affected board member should disclose the relationship, and recuse himself or herself from discussions, and abstain from voting, on the appointment of his or her spouse to the office of treasurer and on other matters relating solely or primarily to the treasurer.

You ask whether the spouse of a member of a fire district board of commissioners may serve as an appointed fire district treasurer.

Town Law § 174 (2) provides for the election of a fire district treasurer for a term of three years. Pursuant to Town Law § 176 (2-a), the office of fire district treasurer may be converted to an appointive office by resolution of the board of fire commissioners, subject to voter approval (see 1989 Ops St Comp No. 89-43, at 103).

There are certain statutory restrictions limiting eligibility for appointment or election to the office of fire district treasurer. For example, a person who has been convicted of arson in any degree is not eligible to hold the office of fire district treasurer (Town Law §§ 174 [5], 175 [3]). Moreover, a person may not hold the offices of fire district commissioner and fire district treasurer at the same time (Town Law § 174 [4]). There is no similar statutory prohibition, however, against the spouse of a fire district commissioner being appointed or elected to the office of fire district treasurer (see 1983 Ops St Comp No. 83-129, at 163; cf. Public Officers Law § 3 [1]; Town Law § 175 [3]; compare Education Law § 3016 [prohibiting any person from being employed as a teacher by a school district if he or she is related by blood or marriage to any member of the board of education, except by two-thirds vote of the board]). 1 In addition, there is no common law prohibition against spouses holding offices in the same municipality (see e.g. 1994 Ops Atty Gen No. 94-12).

While there is no statutory or common law prohibition against the appointment of the spouse of a member of a board of fire commissioners to the office of fire district treasurer, the fire district should ascertain whether its code of ethics (see General Municipal Law § 806) requires a member of the board of fire commissioners whose spouse is to be appointed as treasurer to disclose the relationship, recuse himself or herself from discussions on the appointment and on other resolutions relating specifically to the treasurer (e.g. fixing the compensation for the office of treasurer), and abstain from voting on such matters. We believe that municipal codes of ethics should contain such provisions (see Office of State Comptroller, Model Code of Ethics for Fire Districts, section 7 [a] [2] [available at www.osc.state.ny.us/localgov/fdreform/modelcoe.pdf ]). 2

Further, we note that the courts of this State have held public officials to a high standard of conduct and, on occasion, have negated certain actions of municipal bodies that, although not violating any statute or code of ethics, were found to be inconsistent with public policy or suggest self-interest, partiality or economic impropriety (see e.g., Zagoreos v Conklin, 109 AD2d 281, 491 NYS2d 358; Matter of Tuxedo Conservation & Taxpayers Assn. v Town Bd. of Town of Tuxedo, 69 AD2d 320, 418 NYS2d 638; Conrad v Hinman, 122 Misc 2d 531, 471 NYS2d 521). Based on these principles, to avoid even an appearance of impropriety, we believe that, even if the fire district's code of ethics does not require disclosure, abstention and recusal, the affected board member should disclose the relationship, and recuse himself or herself from discussions, and abstain from voting, on the appointment of his or her spouse to the office of treasurer and on other matters relating solely or primarily to the treasurer (see 2000 Ops St Comp No. 2000-12, supra). Such matters would include, but not be limited to, fixing the compensation of the treasurer, auditing claims submitted by the treasurer (e.g., for travel reimbursement), reviewing the treasurer's annual accounting of receipts and disbursements (see Town Law § 177), any examination of the treasurer's books and records (id.), and any requests by the treasurer for materials, supplies, equipment or personnel.

To assist in addressing similar issues that may arise in the future, the fire district may wish to consider establishing a board of ethics, if one has not yet been established (see General Municipal Law § 808 [3]). A fire district board of ethics would render advisory opinions with respect to article 18 of the General Municipal Law and the fire district's code of ethics, to officers and employees of the fire district pursuant to written request, under rules and regulations as may be prescribed by the board of ethics (General Municipal Law § 808 [2]). Alternatively, if the county within which the fire district is located has established a board of ethics, officers and employees of the fire district may request advisory opinions from the county board of ethics.

Finally, we wish to stress the importance of fire district officials remaining informed as to applicable ethical standards. Pursuant to Town Law § 176-e, “ethical responsibilities” is one of the mandatory subject areas in the training course required of fire district commissioners. In addition, fire district officials should take advantage of continuing training opportunities provided by this Office and others. Moreover, a fire district should ensure that a copy of its code of ethics is distributed to every officer and employee as required by General Municipal Law § 806 (2), and that copies of General Municipal Law §§ 800 through 809 are posted in each public building under its jurisdiction, in a place conspicuous to its officers and employees, as required by General Municipal Law § 807.

March 26, 2009

Joseph F. Frank, Esq., General Counsel
Board of Fire Commissioners of the Hicksville Fire District

1 The provisions of article 18 of the General Municipal Law (§ 800 et seq.), which prohibit municipal officers and employees from having “interests” in “contracts” of the municipality under certain circumstances (General Municipal Law §§ 800-804), do not present a bar to spouses holding offices in the same municipality (see General Municipal Law §§ 800 [3], 801 [last sentence]; see also e.g., 2000 Ops St Comp No. 2000-12, at 33; 1983 Ops St Comp No. 83-129 at 163; 1979 Ops St Comp No. 79-81, at 16; 1988 Ops Atty Gen No. 88-41).

2 Pursuant to section 2 of chapter 238 of the Laws of 2006, the State Comptroller was required to create and make available a model code of ethics for fire districts. Chapter 238 of the Laws of 2006 also amended General Municipal Law § 806 to require fire districts to adopt codes of ethics. Prior to this amendment, fire districts were authorized, but not required, to adopt codes of ethics (see 1989 Ops St Comp No. 89-20, at 44).