NYCL AGO 96-12.

Case DateMarch 25, 1996
CourtNew York
New York Attorney General Opinions 1996. AGO 96-12. March 25, 1996Informal Opinion No. 96-12Robert J. Chauvin, Esq. Town Attorney Town of Halfmoon P.O. Box 1258 Clifton Park, NY 12065HIGHWAY LAW § 140(4); TOWN LAW § 32(2).A person may not serve simultaneously on the town board and also as the deputy superintendent of highways or as a laborer in the highway department.Dear Mr. Chauvin: You have asked whether a person may serve simultaneously as member of the town board and also as a laborer in the highway department or as deputy superintendent of highways. The town board may at any time establish the office of deputy superintendent of highways. Town Law § 32(2). The deputy superintendent of highways is appointed by and serves at the pleasure of the town superintendent of highways. Id. The town superintendent of highways, within the limits of appropriations and subject to the approval of the town board, may employ persons necessary for the maintenance and repair of town highways and bridges and for the removal of obstructions caused by snow, and is responsible for the supervision of these persons. Highway Law § 140(4). 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 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...

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