Requestor: William J. Kirk, Esq., Town Attorney Town of Fayette P.O. Box 630 Waterloo, New York 13165
Written by: James D. Cole, Assistant Attorney General in Charge of Opinions
You have asked whether a person may serve simultaneously as a member of a town board and as the undersheriff of the county.
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 isPeople ex rel. Ryan v Green, 58 N.Y. 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 normally easy to see. 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 legislative and administrative arm of town government. The undersheriff executes the duties of the office of sheriff during the sheriff's absence or his inability to serve or when a vacancy occurs in that office. County Law § 652(1). We are not aware of any statutory provision that prohibits the holding of these two offices.See, County Law § 411. Nor do we view these positions as incompatible. The sheriff's office serves as the conservator of the peace within the county. Id., § 650. The town board establishes policy and legislation on behalf of the town. In our view, these duties are compatible. See, 1987 Op Atty Gen (Inf) 63; 1982 Op Atty Gen (Inf) 111; 1961 Op Atty Gen (Inf) 208.
We conclude that the offices of member of a town board and undersheriff of a county are compatible.
The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of the views of this office.