Judges: SIOBHAN S. CRARY, Assistant Attorney General
Filed Date: 3/3/1997
Status: Precedential
Modified Date: 7/5/2016
L. Michael Mackey, Esq. Informal Opinion Town Attorney No. 97-9 Town of Westerlo Box 148 Westerlo, N Y 12193
Dear Mr. Mackey:
You have asked whether the deputy town clerk/receiver of taxes, who was appointed by the town clerk and serves part time, may be appointed to fill a vacancy created when one of the town's three elected assessors resigned.
Town Law §
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,
There are two subsidiary aspects of compatibility. One is that the principle equally covers an office and a position of employment or two positions of employment. Also, where positions are compatible, a conflict of interests may arise out of the simultaneous holding of the positions. The conflict can be avoided by declining to participate in the disposition of the particular matter.
Counsel to the former State Board of Equalization and Assessment (now office of Real Property Services) has concluded that the offices of appointed town assessor and tax collector are compatible. 6 Op Counsel SBEA No. 55. In that opinion, counsel noted that the duties of the tax collector are ministerial in contrast to those of the assessor which involve a great deal of discretion. Counsel also noted that the functions of one office will not interfere with the other.
In regard to a particular assessment roll, the duties of the assessor have been completed and his jurisdiction regarding the roll has ended before the warrant is attached. Only after the warrant is attached does the assessment roll become the tax roll regarding which the collecting officer performs his duties.
In our view, the same rationale applies here. There appears to be no overlap of duties between the assessor and the deputy town clerk/receiver of taxes. Moreover, there appears to be no inconsistency between the duties of the two. The particular duties of each deputy are to be determined by the town clerk. Town Law §
The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.
Very truly yours,
SIOBHAN S. CRARY
Assistant Attorney General