Informal Opinion No. ( 1983 )

James F. Collins, Esq. County Attorney, Herkimer

You have asked whether the attorney for a county sewer district who is later elected to the position of part-time district attorney and who intends to hold both positions, must make a disclosure of interest under section 803 of Article 18 of the General Municipal Law.

Section 803 requires that any officer or employee who has, will have, or later acquires an interest in any actual or proposed contract with the municipality he serves, must publicly disclose the nature and extent of the interest in writing to the governing body. The written disclosure is to be made part of the official record of proceedings of the governing body.

Other provisions of Article 18 of the General Municipal Law invalidate contracts made by a municipality, where an officer or employee of that municipality with an "interest" in the contract has certain powers and duties with respect to the contract (General Municipal Law, §§ 800,801 and 804). This prohibition does not apply to the employment of an officer or employee in another position with the municipality he serves and is limited by certain other exceptions (id., §§ 801 and 802). Of course, the holding of the two positions might otherwise be prohibited by statute, common law incompatibility (People ex rel Ryan v Green,58 N.Y. 295 [1874]) or by the rule in Wood v Town of Whitehall,120 Misc. 124 (Sup Ct, Washington Co, 1923) affd 206 App. Div. 786 (3d Dept, 1923).

While the reach of the provisions prohibiting conflicts of interest is limited by certain exceptions, section 803 requires the disclosure by an officer or employee of a municipality of an interest in any actual or proposed contract with the municipality he serves. There is one exception to the disclosure requirement, which, however, does not apply to the circumstances you have presented. It appears that section 803, save the one exception, requires disclosure of any interest, whether or not the interest is one prohibited under other provisions of Article 18. Counties, cities, towns, villages and school districts are authorized to adopt codes of ethics that proscribe conduct not expressly prohibited under Article 18 of the General Municipal Law (id., § 806). Also, common law incompatibility may prohibit the holding simultaneously of more than one public position. It follows that a broad disclosure requirement serves a useful purpose in identifying these situtations.

We conclude that the attorney for a county sewer district who is later elected to the position of part-time district attorney and who intends to hold both positions, must make a disclosure of interest under section 803 of Article 18 of the General Municipal Law.