Opn. No. ( 1980 )

Hon. John V. Simon Niagara County Attorney

You request our opinion whether there is an incompatibility between the offices of assistant county attorney of Niagara County and counsel to the Niagara Falls Housing Authority and also between the offices of member of the Niagara County Legislature and a member of the authority.

The New York Constitution, Article XVIII authorizes the Legislature to create public housing authorities for cities, villages and towns. Public Housing Law § 415 created the Niagara Falls Housing Authority. The Legislature was not granted power to create public housing authorities for counties and counties have no function to perform in relation to a public housing authority.

People ex rel. Ryan v Green, 58 N.Y. 295 (1874) contains, at pages 304 and 305, the classic description of the elements of an incompatibility in office: i.e.,

"It may be granted that it was physically impossible for the relator to be present in his seat in the assembly chamber, in the performance of his duty as a member of that body, and at the same time at his desk in the court doing his duty as deputy clerk thereof. But it is clearly shown in those opinions, that physical impossibility is not the incompatibility of the common law, which existing, one office is ipso facto vacated by accepting another. Incompatibility between two offices, is an inconsistency in the functions of the two; as judge and clerk of the same court — officer who presents his personal account subject to audit, and officer whose duty it is to audit it. * * * Where one office is not subordinate to the other, nor the relations of the one to the other such as are inconsistent and repugnant, there is not that incompatibility from which the law declares that the acceptance of the one is the vacation of the other. The force of the word, in its application to this matter is, that from the nature and relations to each other, of the two places, they ought not to be held by the same person, from the contrariety and antagonism which would result in the attempt by one person to faithfully and impartially discharge the duties of one, toward the incumbent of the other. * * * The offices must subordinate, one [to] the other, and they must, per se, have the right to interfere, one with the other, before they are incompatible at common law."

In our opinion, there is no incompatibility between the offices of Niagara county attorney (or an assistant) and counsel to the Niagara Falls Housing Authority or between the offices of member of the Niagara County Legislature and member of the Niagara Falls Housing Authority.