NYCL AGO 96-2.

• Case Date: February 06, 1996
• Court: New York

New York Attorney General Opinions 1996. AGO 96-2. February 6, 1996Informal Opinion No. 96-2James A.P. McCarthy, Esq. Enlarged City School District of Troy 120 State Street Albany, NY 12207-2829EDUCATION LAW ART 51, §§ 2501, 2502(7); PUBLIC OFFICERS LAW § 3(11).A person may not simultaneously serve as the corporation counsel of the City of Troy and as a member of the board of education of the Troy City School District.Dear Mr. McCarthy: You have asked whether a person may serve as corporation counsel of the City of Troy while also holding the position of member of the board of education of the Troy City School District. You have indicated that the City of Troy has a population of fewer than 125,000 people and that the district is, therefore, an enlarged city school district. Article 51 of the Education Law governs school districts of each city which according to the last Federal census has fewer than 125,000 inhabitants. Education Law § 2501. In such a school district, no person "shall hold at the same time the office of member of the board of education and any city office other than as a policeman or fireman". Id., § 2502(7). If the position of corporation counsel of the City of Troy is a public office, simultaneous service on the Troy School District's Board of Education and as corporation counsel of the City of Troy would violate section 2502(7). In a recent opinion of this office, we set forth the standards for determining whether a position is an office rather than a position of employment.

A determination as to whether an appointee is an officer rather than an employee requires a judgment whether the powers, duties, qualifications and other characteristics of the job make him an officer rather than an employee. The distinction between a public office and public employment is not always clear.Matter of Dawson v Knox, 231 App Div 490, 492 (3d Dept 1931). The duties of a public official involve some exercise of sovereign powers while those of a public employee do not. Ibid.; Matter of Haller v Carlson, 42 AD2d 829 (4th Dept 1973). The statutory designation of a position as an office is some indication that the legislative body intended to treat its occupant as a public officer. Matter of MacDonald v Ordway, 219 NY 328, 332 (1916); Matter of Haller v Carlson, supra, p 830. Other indicia of a public office

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