Informal Opinion No.

Glenn S. Hackett, Esq. County Attorney, Niagara

You have asked whether one person may hold simultaneously the positions of deputy sheriff and member of the village board of trustees.

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 interest 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.

We are not aware of any statutory basis for incompatibility of these two offices (see Village Law, § 3-300[3] and [4]; County Law, § 411).

The sheriff and his deputies are the conservators of the peace within the county (County Law, § 650). Thus, the sheriff has jurisdiction to provide law enforcement services in a village within the county. The board of trustees is the legislative arm of village government (Village Law, § 4-412). Considering the duties of the two offices, we find no basis for incompatibility.

We conclude that the offices of deputy sheriff and member of a village board of trustees are compatible.