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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

CONFLICT OF INTEREST -- Collective Bargaining Agreement (school board member holding position in state teachers association) -- Code of Ethics (school board member holding position in state teachers association); (school board member owning college entrance counselling and tutoring business)

EDUCATION LAW, §2103(4); General Municipal Law, §§801, 802(1)(f), 805-a, 806: A school board member does not have a conflict of interest pursuant to Article 18 of the General Municipal Law solely by virtue of either holding a position in a state teachers association or owning a college entrance and counselling business; however, one or both activities may be regulated by the school district's code of ethics.

You ask whether a person who is a member of the board of education of a city school district has a conflict of interest when:

(1) the person holds a position with a state teachers association which "also represents" the teachers in the school district of which he is a board member;

(2) the person is president of the local teachers association of another school district and a member of that association's negotiating team; and

(3) the person is sole proprietor of a private college entrance counselling and tutoring business and promotes the business by "contacting" principals, counselors and teachers in the school district of which he is a board member.

Initially, we note that it is our policy not to render opinions to one municipality or school district concerning the powers and duties of another municipality or school district unless we receive a joint opinion request. Therefore, inasmuch as you represent only the school district of which this individual is a board member, we will discuss the issue of conflicts of interest only as it relates to this individual's status as a member of the school board of that school district.

Education Law, §2103(4) provides that no employee of a board of education may be member of such board. Thus, one person may not serve on a school board and simultaneously be an employee of that board (see 1979 Opns. St Comp No. 79-626, unreported). Section 2103(4), however, does not prohibit a person from serving on the board of education of one school district while he serves as an employee of another school district. Furthermore, section 2103(4) does not prohibit a school board member from holding a position in a teachers association. Therefore, absent another provision of law, it does not appear that there is any bar to a board member of one school district being employed by another school district.

General Municipal Law, Article 18 (§800 et seq.) governs conflicts of interest of municipal officers (see General Municipal Law, §800[4],[5]). For this purpose, a "contract" includes any express or implied claim, account or demand against or agreement with a municipality (see General Municipal Law, §800[2]). A municipal officer or employee has an "interest" in any contract with the municipality if he or she receives a direct or indirect pecuniary or material benefit as to the result of the contract (General Municipal Law, §800[3]), and is also deemed to have an interest in any contract of a firm, partnership or association of which he or she is a member or an employee (General Municipal Law, §803[3][b]). That interest is prohibited if the officer or employee, individually or as a member of a board, has the power or duty to: (a) negotiate, prepare, authorize or approve the contract or approve payments thereunder; (b) audit bills or claims under the contract; or (c) appoint an officer or employee who has any such duties (General Municipal Law, §801), and none of the exceptions contained in article 18 are applicable (see General Municipal Law, §802). Any contract willfully entered into in which there is a prohibited interest is null, void and unenforceable (General Municipal Law, §804), and any officer or employee who willfully and knowingly violates these provisions may be guilty of a misdemeanor (General Municipal Law, §805).

Based on the foregoing provisions, the board member would have an interest in any contract between the school district for which he serves as a board member and his counselling and tutoring business, and would be deemed to have an interest in any contract between that school district and the state teachers association by virtue of his membership in that association. Further, unless one of the exceptions in General Municipal Law, §802 is applicable, those interests would be prohibited because the person in question, as a member of the board of education of the school district, would have one or more of the powers referred to in General Municipal Law, §801 (see Education Law, §§2503, 2513, 2514).

In this regard, we note that General Municipal Law, §802(1)(f) makes section 801 inapplicable to "[a] contract with a membership corporation or other volunteer non-profit corporation or association," and that this provision has been construed as applying to a collective bargaining agreement (see Stettine v County of Suffolk, 66 NY2d 354, 497 NYS2d 329, 488 NE2d 75 [1985]). Therefore, should there be a collective bargaining agreement between your school district and the state teachers association, we believe that the person in question would not have a prohibited interest in that contract as long as the association is a voluntary non-profit association within the meaning of section 802(1)(f) (see Stettine, supra). Similarity, the individual's position as president of, and negotiator for, a local teacher's association in another school district would not give rise to a conflict of interest as long as that association is a voluntary non-profit association within the meaning of General Municipal Law, §802(1)(f).

We note that even if this individual has an interest in a contract that is not prohibited, General Municipal Law, §803 nonetheless generally requires that the interest be disclosed in writing and included in the official record of the governing board's proceedings. This disclosure is required in all cases except where the interest in the contract is not prohibited by virtue of one of the exceptions in General Municipal Law, §802(2).

In addition, because of this individual's positions with the state and local associations representing teachers in both school districts and his solicitation of school district employees in connection with his private firm, it is important to note that General Municipal Law, §805-a(1)(b) prohibits a municipal officer or employee from disclosing confidential information acquired by him in the course of his official duties or using such information to further his personal interests. Also, General Municipal Law, §805-a(1)(c) prohibits a municipal officer or employee from receiving, or entering into any express or implied agreement for, compensation for services to be rendered in relation to any matter before any municipal agency of which he is an officer, member or employee or of any municipal agency over which he has jurisdiction or to which he has the power to appoint any member, officer or employee. Any person who knowingly and intentionally violates these provisions may be fined, suspended or removed from office or employment in the manner provided by law (General Municipal Law, §805-a[2]).

We are not in a position to determine whether the individual has disclosed confidential information. Further, we are not in a position to determine whether the board member's college entrance counselling and tutoring business would be involved in "any matter before" your school district. However, consideration should be given to the possible applicability of section 805-a(1)(b) and (1)(c).

Even if the person in question has not violated any provision of the General Municipal Law, the school district code of ethics should be consulted to determine whether it contains any pertinent provisions. In this regard, we note that codes of ethics are required to contain provisions relative to private employment in conflict with official duties in (General Municipal Law, §806[1]). We also note that the Commissioner of Education has expressed the view that to the extent that simultaneous membership on a board of education and union membership create a duality of interest in the board member, the matter is properly addressed in the school district's code of ethics (Matter of Samuel and Zohn, 25 Ed Dept. 228 [1985]). The inclusion of such a provision in the code seems especially important because the courts of this State have held public officials to a high standard of conduct and, on occasion, have negated certain actions, which, although not violating the literal provisions of Article 18 of the General Municipal Law, violate the spirit and the intent of the statute, are inconsistent with public policy, or suggest self interest or partiality or economic impropriety (see, e.g., Zagoreos v Conklin, 109 AD2d 281, 491 NYS2d 358 [2nd Dept 1985]; Matter of Tuxedo Conservation and Taxpayers Ass'n v Town Board of the Town of Tuxedo, 69 AD2d 320, 418 NYS2d 638 [2nd Dept 1979]; Conrad v Hinman, 122 Misc 2d 531, 471 NYS2d 521 [1984]). Therefore, we suggest that the school board adopt a code of ethics which is consistent with the principles discussed in these decisions.

June 16, 1989
Anthony J. LaFache, Esq., School District Attorney
Utica City School District