Opn. No. ( 1992 )

Requestor: William J. Casilio, Esq., Town Attorney Town of Clarence One Town Place Clarence, N.Y. 14031

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

You have asked whether a person may serve simultaneously as town supervisor and as director of county real property tax services. Your concern is that the county director of real property tax services has some control over the town assessor's office.

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 county director of real property tax services provides advisory services to city and town assessors and boards of assessment review. Real Property Tax Law § 1532. Among the services performed are the preparation of tax maps, provision of advisory appraisals, provision of advice to assessors on procedures for the preparation and maintenance of assessment roles and other services. Ibid.

The town supervisor serves as a member of the town board, which legislates and establishes policy on behalf of the town. Additionally, the town supervisor has certain fiscal functions.

We see no incompatibility between these two positions. The county director of real property tax services provides assistance to town assessors. The powers and duties of a town supervisor do not conflict with the services performed by a county director of real property tax services. Further, we are not aware of any statute that prohibits the holding of these two positions. County Law § 411.

We conclude that a town supervisor may also serve as county director of real property tax services.

The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of the views of this office.