NYCL AGO 96-16.

• Case Date: May 09, 1996
• Court: New York

New York Attorney General Opinions 1996. AGO 96-16. May 9, 1996Informal Opinion No. 96-16David L. Levinson, Esq. Village Attorney Village of Goshen 267 Main Street Goshen, NY 10924GENERAL MUNICIPAL LAW §§ 239-m, 806, 808; MUNICIPAL HOME RULE LAW § 10; TOWN LAW §§ 60, 64; VILLAGE LAW § 7-712-a(4).A person may serve simultaneously as the chairperson of the village zoning board of appeals and as a member of the town board. As a member of the zoning board of appeals, however, this individual may find it necessary occasionally to recuse him or herself from actions which affect the interests of town residents.Dear Mr. Levinson: You have asked whether a person may serve simultaneously as the chairperson of a village zoning board of appeals and as a member of the town board of the town in which the village is located. 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 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. The town board is the governing body of a town and has extensive legislative and administrative powers. Town Law §§ 60, 64; Municipal Home Rule Law § 10. The village zoning board of appeals hears and decides appeals from orders...