Informal Opinion No. ( 1985 )

Jeffrey D. Buchanan, Esq. Deputy Town Attorney, Bedford

I am writing in response to your request for an opinion as to the compatibility of the offices of town justice and school board member.

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.

A 1949 Attorney General's opinion concluded that the offices of justice of the peace and school board member were compatible because there was no conflict or overlap of the duties of the two offices (1949 Op Atty Gen [Inf] 37). Under the Uniform Justice Court Act, justices of the peace are now known as town justices, the office presently under examination (UJCA, § 103). Furthermore, examination of the provisions of the Education Law governing membership on central school district boards does not indicate any grounds for incompatibility (Education Law, §1804). Litigation challenging actions of the school board would be in the nature of an article 78 proceeding, triable in Supreme Court (see, CPLR §§ 7801-7806; Op Atty Gen No. 84-14). Although it is conceivable that a school board could bring an action in a town court, any impropriety, or the appearance thereof could be avoided by the town justice recusing himself from the case. Presumably, this would occur infrequently and not inevitably, and would not interfere with the performance of the duties of either office. If, however, recusal became a common occurrence, resignation from one of the offices may be necessary.

Accordingly, we conclude that the offices of town justice and member of a central school district board of education are compatible.