Opn. No. ( 1978 )

Hon. Frederick A. Wolf Village Attorney, Lancaster

This is in response to your letter wherein you state that a cable T.V. company has recently been granted a franchise by the Village of Lancaster. You further state that an officer (vice president) of the cable T.V. company is being considered to fill a vacancy on the Village Board of Trustees. You ask whether there would be a conflict of interest between the two positions and, if so, whether our opinion would be different if the individual were merely an employee of the company as distinguished from one of the franchisee's equity stockholders.

Article 18 of the General Municipal Law would govern the propriety of the dual occupation of the two positions by the same person. There have been previous opinions rendered dealing with conflicts involving franchises of this nature by both this office (1970 Atty Gen [Inf Opns] 152; 1975 Atty Gen [Inf Opns] 238) and the Department of Audit and Control (Opns St Comp, 1965, No. 65-588; Opns St Comp, 1973, No. 73-211). It has consistently been the conclusion that the franchise is a "contract" within the definition of the term in General Municipal Law, § 800 (2). Therefore, no matter what position the individual may hold in the cable T.V. company, he would have an "interest" in that corporation which would have to be disclosed if he became a trustee (General Municipal Law, § 803). Whether the "interest" would be prohibited by General Municipal Law, § 801, or fall within a section 802 exception, would depend on what capacity he serves in the corporation. As vice president or holder of more than five percent of the stock of the corporation, he would have a prohibited interest and would not be capable of occupying both positions. If, however, he is a mere employee and "* * * if the remuneration of such employment will not be directly affected as a result of such contract (between the village and the corporation) and the duties of such employment do not directly involve the procurement, preparation or performance of any part of such contract * * *" (General Municipal Law, § 802, subd 1 [b]; matter in parentheses supplied), he would be excepted from the prohibition contained in section 801 and could serve in both positions.