Informal Opinion No. ( 1987 )

Ronald P. Bennett, Esq. Town Attorney, Colden

You have asked whether one person may hold the positions of town building inspector, code enforcement officer and fire inspector.

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.

Section 138 of the Town Law authorizes the appointment of a building inspector and gives the inspector responsibility for the enforcement of building codes and zoning regulations (Town Law, § 138). Thus, the Legislature determined that these two functions are compatible. In our view, the additional duty of enforcing the fire code is compatible with these other responsibilities. None of the three positions is subordinate to any of the others and one position does not have any review powers over decisions made by the occupants of the other positions. Thus, in our view these positions are compatible.

We conclude that a person may simultaneously hold the positions of town building inspector, zoning enforcement officer and fire inspector.