Opn. No. ( 1993 )

Requestor: D. Michael Murray, Esq., City Attorney City of Batavia P.O. Box 467 Batavia, N Y 14021

Written by: James D. Cole, Assistant Attorney General in Charge of Opinions

You have asked whether an employee of the Western Regional Off-Track Betting Corporation can hold a seat on the Genesee County Legislature. Genesee County is a participating county in the regional off-track betting corporation.

Section 502 of the Racing, Wagering and Pari-Mutual Breeding Law governs the membership and appointment of members of the board of directors of regional off-track betting corporations. The members of the board are to be appointed by the governing bodies of participating counties and in counties having a population of less than 200,000, the board may include sitting members of the county legislative body. Sitting members may not be compensated by the regional corporation. Genesee County has a population under 200,000 and therefore its legislative body may appoint sitting members of that body to the board of the regional off-track betting corporation. Off-track betting corporations are corporate bodies constituting public benefit corporations (id., § 502[a]) and, therefore, are entities legally separate from the participating counties.

In prior opinions we found that the positions of member of the board of a regional off-track betting corporation and member of a participating county's legislative body are incompatible. 1982 Op Atty Gen (Inf) 148; 1979 Op Atty Gen (Inf) 227. We based these findings on the extensive interaction authorized by law between the two governing entities.

— A participating county may acquire real property in the name of the county by purchase or condemnation for use by the corporation or may lease real property from other owners for such purpose;

— The county may acquire or lease personal property for use by the corporation;

— The county may authorize the corporation to use or occupy real property owned by the county or under lease to the county;

— A participating county may enter into contracts with the corporation for the undertaking of any of the above activities.

Racing, Pari-Mutual Wagering and Breeding Law § 505(1), (2), (3) and (5).

— A participating county is authorized to loan or contract to loan money to the corporation;

— A participating county may contribute or contract to contribute money or personal property to a corporation.

Id., § 506(1), (3).

We found that because of the divided loyalties a person would have as a member of both governing boards he could not impartially represent the interests of both the county and the off-track betting corporation. At least, there would be an appearance of impropriety in acting in both positions.

In our view, the statutory exception to the incompatibility of offices should be read narrowly. Further, unlike a sitting member of a county legislative body who may not be compensated as a board member of the regional corporation, an employee of the regional corporation would receive compensation. This compensation and other terms and conditions of employment would be subject to approval by the governing board of the OTB. We have noted the powerful pressure that is placed on an employee with respect to the interests of his employer. 1986 Op Atty Gen (Inf) 114. In our view, this person in his capacity as member of the county legislative body may not be able to deal impartially with the board of the OTB corporation. At least, there would be an appearance of partiality in his dealings with the corporation.

We conclude that a member of the legislative body of a participating county may not also serve as an employee of the regional off-track betting corporation.

The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.