Opn. No. ( 1994 )

Requestor: James W. Warren, Esq., Village Attorney Village of Athens P.O. Box 158 Coxsackie, N Y 12051

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

You have asked whether the membership of two members of the village board of trustees on the village rescue squad is incompatible or creates any conflicts of interests.

In a telephone conversation, you have indicated that the rescue squad is part of the village volunteer fire company, an entity that is separate from the village. The board of trustees, however, approves funding for partial support of the rescue squad. Also, the board of trustees approves the appointment of members to the rescue squad and decides appeals on the discipline of members of the rescue squad. You have informed us that the village is small in population and has difficulty finding a sufficient number of persons to serve on the rescue squad. You have advised that the disqualification of the two trustees would create a hardship.

Two offices are incompatible if one is subordinate to the other or if there is inherent inconsistency between the two offices. The former can be characterized as "you can not 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.

While it appears that members of the rescue squad are subordinate to the village board of trustees, this does not end the inquiry. We have concluded that in certain circumstances a local legislative body, in determining public policy by local law, may supersede the common law doctrine of compatibility of office. 1983 Op Atty Gen (Inf) 50; 1984 Op Atty Gen (Inf) 84. Such a local law might serve the public interest in a small municipality where there are not enough residents willing to serve in certain positions or who possess the required expertise. 1984 Op Atty Gen (Inf) 84. In situations such as these, a municipality may find it necessary, in furthering the public interest, to establish exceptions to the common law rule of compatibility of office. In deliberating on such a local law, the legislative body must consider the severity of the conflict that would result.

It is necessary that your village's board of trustees review the situation to determine whether such a local law is warranted. We note that even in the event a local law is warranted, the trustees who serve as rescue squad members must recuse themselves from participating in any matters relating to the rescue squad where there would be conflicts of interests.

We conclude that a municipality by local law may establish an exception to the common law prohibition on holding incompatible offices where the public interest would be served.

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.