NYCL AGO 95-12.

• Case Date: February 08, 1995
• Court: New York

New York Attorney General Opinions 1995. AGO 95-12. February 8, 1995Informal Opinion No. 95-12Andrew V. Lalonde, Esq. Corporation Counsel City of Auburn Memorial City Hall 24 South Street Auburn, NY 13021-3832The positions of member of the city council and city firefighter are incompatible.Dear Mr. Lalonde: You have asked whether a member of the City of Auburn fire department may also serve as a member of the city council. First, I suggest that you review the city charter to determine whether there is any prohibition on the holding of these two positions. In the absence of a statutory prohibition, the question remains whether the positions are compatible under the common law rule of compatibility of office. 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 is People ex rel. Ryan v Green, 58 NY 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...