Filed Date: 5/26/1988
Status: Precedential
Modified Date: 7/5/2016
William J. Kirk, Esq. Town Attorney, Waterloo
You have asked whether a town justice may also serve as a building code enforcement officer for the county in which the town is situate.
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, 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.
The position of county building inspector was created by Seneca County's Local Law No. 1 of 1984, entitled "Enforcement and Administration of State of New York Uniform Fire Prevention and Building Code". The building inspector(s) work under the supervision of the building code enforcement official, and are generally responsible for inspecting structures to ensure compliance with the code. Under the building code act (Executive Law, §§
Under the Code of Judicial Conduct and the Rules of the Chief Administrator of Courts, the justice's personal involvement in the code enforcement action would prevent him from hearing the case himself (Code of Judicial Conduct, Canon 3 [C]; 22 NYCRR § 100.5). Furthermore, we believe an appearance of impropriety exists if the town justice, in his capacity as building inspector, is required to appear as a complainant before his fellow justice. The potential for favoritism towards a fellow justice whose non-judicial duties include appearance before the justice court creates an appearance of impropriety. In past opinions we have emphasized that public officials should avoid circumstances which compromise their ability to make impartial judgments solely in the public interest (Op Atty Gen No. 87-67; 1984 Op Atty Gen [Inf] 88, 160). Even the appearance of impropriety should be avoided in order to maintain public confidence in government (ibid.).
We conclude that a county building inspector may not also serve as a town justice for a town within the county.