Opn. No.

Requestor: Richard B. Wolf, Deputy Town Attorney Town of Poughkeepsie P.O. Box 3209 Poughkeepsie, New York 12603

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

You have asked whether a person may serve simultaneously as a full-time paid firefighter employed by a fire district in the town and as a part-time assistant town 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 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. If such situations are inevitable as opposed to being possibilities, there is an inherent inconsistency in the positions.

Under section 130(5) of the Town Law, the town board can establish the positions of fire inspectors and grant to these officials the authority to enforce regulations relating to the construction and maintenance of buildings, storage of materials, undertaking of activities posing a risk of fire and public safety and access in the event of a fire. These duties do not include review or investigation of the activities of a fire department of a fire district. It would appear that the duties of a paid firefighter of a fire district and an assistant town fire inspector are independent of one another.

We conclude that the positions of paid firefighter of a fire department of a fire district and assistant town fire inspector are compatible.

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