NYCL AGO 96-20.

• Case Date: June 26, 1996
• Court: New York

New York Attorney General Opinions 1996. AGO 96-20. June 26, 1996Informal Opinion No. 96-20Robert A. Green, Esq. Village Attorney Village of Bellport P.O. Box 3 Bellport, New York 11713-2522GENERAL MUNICIPAL LAW § 239-m(3)(a)(iv), (b); TOWN LAW §§ 261, 267-b; VILLAGE LAW, ART 7.The mayor of a village may serve also as the chairperson o a town zoning board of appeals, but must recuse himself or herself from acting on the zoning board of appeals with respect to matters that affect the interests of the village or village residents.Dear Mr. Green: You have asked whether the mayor of your village may serve simultaneously as the chairperson of the town zoning board of appeals 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. In our view, these positions are not incompatible. In that the offices are in two separate governmental...