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Volume 9 - Opinions of Counsel SBEA No. 119

Opinions of Counsel index

County agricultural and farmland protection board (membership of county director of real property tax services) - Agriculture and Markets Law, § 302; 9 NYCRR 194.14:

A county director of real property tax services is a full, voting member of a county agricultural and farmland protection board, where such a board exists.

We have been asked to explain the membership status of a county director of real property tax services on a county agricultural and farmland protection board. {*}  Such boards may be established by county legislative bodies pursuant to Agriculture and Markets Law, section 302. Section 302(l)(a) provides that a county agricultural and farmland protection board shall consist of 11 members, including the chairperson of the county soil and water conservation district’s board of directors, the county planning director, and the county director of real property tax services.

Agriculture and Markets Law, section 302(l)(a), also provides that the chairperson of the county soil and water conservation board of directors, the county planning director, and the county director of real property tax services shall serve ex officio as members of the county agricultural and farmland protection board. The State Board’s rules (9 NYCRR 194.14(g)) provide that the county director shall serve on the county agricultural and farmland protection board as a full voting member. It has been suggested that the text of the statute and the rule are inconsistent, and we have been asked for confirmation that a county director has full voting privileges as a member of a county agricultural and farmland protection board.

In our opinion, a county director of real property tax services serves as a full voting member of a county agricultural and farmland protection board, if and when such a board is established by the county legislative body. The designation “ex officio,” when identifying the membership of this board, is not a restriction upon the voting privileges of the particular officeholder so designated. Rather, as used here, the term “ex officio” means that membership on the board arises by virtue of the particular public office held by the member and is not personal to the individual. Thus, when the incumbent of the particular public office changes, membership on the county agricultural and farmland protection board will also change. In essence, it is the office, not the individual officeholder, which holds membership rights on the board.

The fact that a county director obtains membership on the board by reason of his or her position as county director does not mean that the county director has a lesser position on the board than those who are otherwise selected. Ex officio members of boards have the same rights (including voting rights) and responsibilities as other board appointees unless a particular law diminishes those rights (see, Sousa v. New York State Knights of Columbus, 10 N.Y.2d 68, 176 N.E.2d 77, 217 N.Y.S.2d 58 (1961); Farrell v. Board of Health, 243 App. Div. 332, 276 N.Y.S. 907 (4th Dept., 1935); see also, Smithtown v. Moore, 11 N.Y.2d 238, 183 N.E.2d 66, 228 N.Y.S.2d 657 (1962)). Section 302 of the Agriculture and Markets Law includes no such restriction on the authority of the county director while sitting on the protection board.

August 20, 1993


{*}  Created L.1992, c.797 as successor to agricultural districting advisory board.

Updated: