Ethics and Conflicts of Interest

2:35. Must a school board adopt a code of ethics and operate according to its tenets?

Yes. The General Municipal Law requires all school boards to adopt a code of ethics for the guidance of its officers and employees that sets forth the standards of conduct reasonably expected of them (Gen. Mun. Law § 806).

The law requires school district codes of ethics to "provide standards for officers and employees with respect to disclosure of interest in legislation before the local governing body, holding of investments in conflict with official duties, private employment in conflict with official duties, future employment and such other standards relating to the conduct of officers and employees as may be deemed advisable" (Gen. Mun. Law § 806(1 )(a); see also Opn. St. Comp. 82-189).

However, the board's code should not violate state law (Appeal of Grinnell, 37 Educ. Dep't Rep. 504 (1998)). For example, the commissioner of education has held improper a board's attempt to apply a provision of its code of ethics as an additional qualification for membership on the board, eligibility for which is governed specifically by the Education Law (Matter of Guilderland CSD, 23 Educ. Dep't Rep. 262 (1984)). In another case, the commissioner declared null and void that portion of a board's code of ethics which prohibited board members from voting on the employment contracts of their relatives (Appeal of Behuniak, 30 Educ. Dep't Rep. 236 (1991)). Likewise, a board's code of ethics may not preclude a board member from voting on a contract involving a collective bargaining unit if the board member is or was a member of a similar bargaining unit in another district, regardless of current employment (Appeal of'Grinnell).

For more information on codes of ethics, contact the New York State Department of State, Division of Legal Services, 41 State Street, 8th Floor, Albany, N.Y. 12231; telephone 518-474-6740.

2:46. What makes two public offices or positions of employment incompatible with one another?

One person cannot simultaneously hold two public offices or positions of employment if one office is subordinate to the other, such that the person would essentially be his or her own boss, or if the functions of the two positions are inherently inconsistent with each other, such as serving simultaneously as the district's finance officer and as the auditor responsible for the integrity of the district's finances (see O'Malley v. Macejka, 44 N.Y.2d 530 (1978); Opn. Att'y Gen. 92-13).

There must be a great likelihood of a division of loyalties or a conflict of duties between the offices, not merely a possibility that such complications may arise on occasion.

The doctrine of compatibility of office does not prohibit an individual from being a candidate for election to a second office where that office is incompatible with the first, if he or she intends to resign from the first office if elected to the second. However, if there is a specific provision of law that makes two offices or positions incompatible, such a provision of law may expressly disqualify a person from even being a candidate for a second incompatible office or position (Opn. Att'y Gen. 89-62; see, for example, 2:47). Once elected and upon accepting the second office, an individual vacates the first office automatically (Opn. Att'y Gen. 89-62;

People ex rel. Ryan v. Green, 58 N.Y. 295 (1874)).

Even where two public offices or positions of employment are compatible, a situation may arise in which holding both offices creates a conflict of interest. If this occurs, the conflict can be avoided by declining to participate in the conflicted matter (Opn. Att'y Gen. 92-13).