Informal Opinion No. ( 1987 )

Charles P. Ayers, Jr., Esq. Town Attorney, Tioga

You have asked whether a person may simultaneously hold the offices of town supervisor and town code enforcement officer. You have informed us that the subject individual currently holds the position of code enforcement officer.

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 interest 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. If such situations are inevitable as opposed to being possibilities, there is an inherent inconsistency in the positions.

The town supervisor is a member of the town board, which is both the administrative and legislative arm of town government. Employees and officers of the town are under the supervision and direction of the town board. The board is responsible for the determination of compensation paid to such officers and employees, establishes duties and evaluates job performance. Thus, the position of town code enforcement officer is subordinate to the office of town supervisor, establishing incompatibility (Informal Opinion No. 86-73; 1984 Op Atty Gen [Inf] 84).

We conclude that a person may not serve simultaneously as the town supervisor and as the town code enforcement officer.