Opn. No.

Requestor: Dennis J. Morris, Esq., Village Attorney Village of Odessa P.O. Box 232 Watkins Glen, N.Y. 14891-0232

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

You have asked whether a person may hold simultaneously the positions of trustee of a public library and zoning officer of a village.

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.

Generally, a zoning officer is required to certify that any proposed construction or land use is consistent with local land use regulations. 1987 Op Atty Gen (Inf) 84. The board of trustees establishes policy for a public library.

We see no incompatibility between these positions. Generally, their functions are separate and distinct and we foresee no inevitable interaction between the duties of the offices. Any discrete circumstances that may arise can be dealt with through recusal.

We conclude that the positions of village zoning officer and member of the board of trustees of a village public library are compatible.

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.