NYCL AGO 95-34.

• Case Date: July 03, 1995
• Court: New York

New York Attorney General Opinions 1995. AGO 95-34. July 3, 1995Informal Opinion No. 95-34Bruce W. Musacchio, Esq. Village Attorney No. 95-34 Village of Gowanda P. O. Box 230 Gowanda, NY 14070MUNICIPAL HOME RULE § 10(1)(ii)(e)(3); VILLAGE LAW § 3-300(3).One person should not hold simultaneously the positions of village trustee and village building and bingo inspector.Dear Mr. Musacchio: You have informed us that the existing building and bingo inspector of the village was elected to the village board of trustees. Your question is whether the inspector, as a member of the board of trustees, can be appointed by the trustees to a new term as building and bingo inspector. You indicated that you are aware of section 3-300(3) of the Village Law, which provides that no person simultaneously may hold an elective and an appointive village office (with certain exceptions that are not relevant here). We need not determine whether the extent of powers held by the building and bingo inspector have given "officer" status to that position, causing a violation of this provision. See, Op Atty Gen (Inf) 92-47, attached, which describes the characteristics of a "public officer". In our view, based on our telephone conversation in which you specified the powers of this position in inspecting buildings, the office of village trustee is incompatible with it. 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 readily identifiable. 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 Ryancase is limited to public offices, the principle equally covers an office and a position of employment or two...