Opn. No. ( 1994 )

Requestor: Sammy Diament, Esq., Deputy Village Attorney Village of Spring Valley Sen. Gene Levy Municipal Plaza 200 North Main Street Spring Valley, N Y 10977

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

You have asked whether the office of deputy registrar of vital statistics is compatible with the position of legal stenographer.

In the absence of a constitutional or statutory prohibition against dual-officeholding, one person may hold two offices simultaneously unless they are incompatible. The leading case on compatibility of office isPeople ex rel. Ryan v Green, 58 N.Y. 295 (1874). In that case the Court held that two offices are incompatible if one is subordinate to the other or if there is an inherent inconsistency between the two offices. The former can be characterized as "you cannot be your own boss", a status normally easy to see. The latter is not easily characterized, for one must analyze the duties of the two offices to ascertain whether there is an inconsistency. An obvious example is the inconsistency of holding both the office of auditor and the office of director of finance.

There are two subsidiary aspects of compatibility. One is that, although the common law rule of the Ryan case is limited to public offices, the principle equally covers an office and a position of employment or two positions of employment. The other is that, although the positions are compatible, a situation may arise where one has a conflict of interests created by the simultaneous holding of the two positions. In such a situation, the conflict is avoided by declining to participate in the disposition of the matter.

We see no incompatibility between these two positions. In that the positions are in two completely separate departments of village government, one cannot be subordinate to the other. Compare, Informal Opinion No. 90-56. Nor do we see any conflict between the duties of the two positions. There appears to be no potential for interaction of the duties of the two positions, removing any possibility of a conflict.

We conclude that the office of deputy registrar of vital statistics is compatible with the position of legal stenographer.

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.