Opn. No. ( 1994 )

Requestor: Val M. Serbalik, Esq., City Attorney City of Mechanicville 36 North Main Street Mechanicville, N Y 12118

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

You have asked whether a person may hold simultaneously the position of commissioner of finance of the City of Mechanicville and the office of treasurer of the Mechanicville fire department.

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.

The treasurer of the fire department is responsible for keeping the books and accounts of the fire department. He must account for all money received as well as bills paid and must make a quarterly report available to each company. Annually, he is to prepare a detailed report of receipts and expenditures for the year indicating any balance or deficiency. He pays all bills when ordered to do so by the board of directors of the fire department. All checks are drawn by the treasurer and countersigned by the secretary.

The commissioner of finance is one of several commissioners of the Mechanicville city government. Under the commission form of government, each of the commissioners is responsible for a department or departments of city government. The commissioner is akin to a department head. The commissioners as a body serve as the legislative body of the Mechanicville city government.

You have indicated that the commissioner of finance has no supervisory responsibility with respect to the fire department. Under the Mechanicville City Charter, the mayor has charge of and supervises the police and fire departments. The fire department's budget is prepared by the chiefs of the fire department who submit the budget to the mayor. The mayor is responsible for controlling expenditures in the fire department.

You have explained that each commissioner and the mayor approves his or her department's budget which then becomes a part of the overall city budget. The commissioners as a body are responsible for approval of the overall city budget.

We see no incompatibility between these two positions. The commissioner of finance of the city has no responsibility with respect to supervision of the affairs of the fire department. This role has been delegated to the mayor under the city charter. While the commissioners, which include the commissioner of finance, are responsible for approving the overall city budget, including the item for the fire department, we do not see this as a basis for incompatibility. Under the commission form of government, each commissioner would be voting on a budget which includes an item for his or her department.

We conclude that under the commission form of government in the City of Mechanicville, the commissioner of finance may also hold the office of treasurer of the Mechanicville fire department.

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.