Opn. No. ( 1994 )

Requestor: Sanford Cohen, Esq., Town Attorney Town of Orangetown Town Hall Orangeburg, N Y 10962

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

You have asked whether a person may hold simultaneously the positions of assistant building inspector of a town and part-time building inspector of a village.

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 basis for a finding of incompatibility. Each of the municipalities has its own building department and separately enforces building regulations within its borders. Thus, there would be little potential for a conflict of duties between the two positions. 1986 Op Atty Gen (Inf) 131; 1984 Op Atty Gen (Inf) 101. Should a conflict arise, the individual can recuse himself and allow someone else in the building department to replace him.

We conclude that the positions of assistant town building inspector and part-time building inspector of a village are compatible.

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.