Opn. No. ( 1980 )

John G. Sisti, Esq. Attorney for the Town of Plattekill

You request an opinion whether one of your town councilmen simultaneously may hold a position with the county purchasing department of the county within which the town lies.

Town Law § 20 subd 4 provides that no person shall be eligible to hold more than one elective town office. County Law § 411 prohibits an elective county officer from holding any other elective county or town office or the office of city supervisor. Neither statute prohibits an employee in a county purchasing department from holding the elective position of town councilman in a town in that county. We are not aware of any other statutory provision or constitutional bar which prohibits the simultaneous holding of those two positions by the same person.

Your county and town are required to have codes of ethics by General Municipal Law § 806, and under § 808 each is authorized to create a board of ethics to advise on ethical matters. We have no way of knowing what your codes of ethics provide or whether one or two boards of ethics have been established and, if established, whether an opinion was requested. Our opinion, of course, must yield to a contrary provision in either of the local codes of ethics or any determination by a local board of ethics.

Incompatibility between two positions exists when the functions and duties of one position are subordinate to and must yield to the functions and duties of the other (People ex rel. Ryan v Green, 58 N.Y. 295 [1874]). See, also, enclosed copy of our informal opinion published in 1978 Op Atty Gen 113. We discern no incompatibility between the two positions about which you inquire.

In our opinion, a town councilman simultaneously may hold a position with the county purchasing department of the county within which the town lies.