James F. Donohue, Esq. Town Attorney, Bedford

You have asked whether a member of a town planning board may represent a party in an application before the planning board of which he is a member.

Section 805-a(1)(c) of Article 18 of the General Municipal Law provides that no municipal officer or employee may receive or enter into any agreement for compensation for services to be rendered in relation to any matter before a municipal agency of which he is an officer, member or employee. Any person who knowingly and intentionally violates this provision may be fined, suspended or removed from office or employment in the manner provided by law (id., § 805-a[2]).

While section 805-a(1)(c) prohibits the receipt of compensation by a member of a municipal board to represent a party in an application before the board, we believe that municipalites should include in their codes of ethics a provision prohibiting any such representation, whether compensated or not (General Municipal Law, § 806[1]). A code of ethics may proscribe conduct not otherwise prohibited by Article 18 (ibid.). Such representation before his colleagues on the board at the very least creates an appearance of impropriety, which would tend to undermine public confidence in the integrity of government, and should be prohibited. Further, such representation would disqualify the member from participating in the board's decision on the matter, and would, therefore, adversely affect the deliberative capacity of the board.

We conclude that a member of a town planning board may not receive compensation to represent a party in an application before that board. A local government should act to prohibit such representation, whether with or without compensation.