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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Employment Contracts (member of county board of health retained by county health department) -- Medical Services (member of county board of health retained by county health department)
HEALTH AND HEALTH SERVICES -- Board of Health (member as consultant to health department) -- Contracts for (consulting services by member of board of health)

GENERAL MUNICIPAL LAW, §§800(5), 801, 802(2)(e); PUBLIC HEALTH LAW, §§2(g), 343, 351: A member of a county board of health would have a conflict of interest if he or she is retained as a consultant to the county health department and an appointee of the board has the power or duty to negotiate the consulting contract, unless and to the extent that one of the exceptions in General Municipal Law, §802 is applicable.

You ask whether an unpaid member of the board of health of a non-charter county would have a conflict of interest if the board member is retained as a paid consultant to the county department of health. You advise that the board member is a doctor, that he would be compensated at the rate of $60 per hour and that the contract was negotiated by the executive officer of the department.

General Municipal Law, Article 18 (§800 et seq.) contains provisions of law relative to conflicts of interest of municipal officers and employees (see General Municipal Law, §800[4],[5]). For purposes of Article 18, a "municipal officer or employee" means any officer or employee of a municipality, whether paid or unpaid, including members of any administrative board, commission or other agency thereof (General Municipal Law, §800[5]). 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 the result of the contract (General Municipal Law, §800[3]). 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]). An interest in a contract 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 powers or duties, and none of the exceptions contained in General Municipal Law, §802 are applicable (see General Municipal Law, §801[1]).

Any contract willfully entered into in which there is 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). We also note that, if an officer or employee has an interest in any actual or proposed contract that is not prohibited under the provisions of Article 18, General Municipal Law, §803 nonetheless generally requires that the nature and extent of the interest be disclosed in writing as soon as the officer or employee has knowledge of the actual or prospective interest. The written disclosure must be included in the official record of the governing board's proceedings. Disclosure is not required under section 803 in the case of an interest in a contract which is not prohibited under subdivision two of section 802 (General Municipal Law, §803[2]).

As a member of an "administrative board" of a municipality (see Public Health Law, §§340[1], 343), a member of a county board of health is a municipal officer for purposes of Article 18 (General Municipal Law, §800[5]; see also People ex rel Bush v Houghton, 182 NY 301; In re Board of Health of Village of Lansingburg, 43 App Div 236, 60 NYS 27; but cf. People ex rel. Van Denbergh v Town Board of Town of Colonie, 254 App Div 54, 4 NYS2d 434, pertaining to the status of a local health officer of a town as an "independent" public officer). Further, a consulting contract between the board member and the county department of health would be a contract with a municipality (see General Municipal Law, §800[2],[4]). The board member would have an "interest" in the contract because he or she, as a paid consultant, would receive a direct pecuniary benefit as a result of the contract (General Municipal Law, §800[3]). That interest would be prohibited if the board member has any of the powers or duties enumerated in General Municipal Law, §801 and no exception in General Municipal Law, §802 is applicable.

In this instance, the county board of health has the power to appoint the executive officer of the county health department (Public Health Law, §§2[g], 351) who, in turn, has the power or duty to negotiate the consulting contract in question (see Public Health Law, §§352, 353[2], pertaining to a county health commissioner's general power to appoint deputies, assistant deputies and other employees; Public Health Law §346[1], requiring the county board of health to audit claims against a county or part-county health district in a county not having a county auditor or comptroller). Therefore, since an appointee of the board of health has the power or duty to negotiate the contract, the board member would have a power or duty within the ambit of General Municipal Law, §801(1) vis-a-vis the consulting contract.

The only exception in General Municipal Law, §802 that would appear to have applicability to this situation is found in section 802(2)(e). That provision contains an exception to the conflict of interest provisions of section 801 for contracts in which a municipal officer or employee has an interest if the total consideration payable under all such contracts during the fiscal year does not exceed $100. Since the board member would be paid $60 per hour as consultant, it is highly unlikely that the exception would apply here. Accordingly, it is our opinion that the member of a county board of health would have a prohibited conflict of interest if he or she is retained as a consultant to the county health department.

May 15, 1990
Kenneth H. Holcombe, Esq.
County of Clinton