Gerardus A. Backhaus, Esq. Village Attorney, Allegany
You have asked whether one person may perform simultaneously the duties of village building inspector and village zoning inspector.
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 interest 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. If such situations are inevitable as opposed to being possibilities, there is an inherent inconsistency in the positions.
Generally, a zoning inspector is required to certify that any proposed construction or change in land use is consistent with the local zoning regulations. In your village, the building inspector has responsibility for ensuring that any construction conforms to the State building construction and fire code.
Neither of these positions is subordinate to the other. Further, in our view, the duties of the two positions are not incompatible. The zoning inspector would review the proposed use or construction and determine its compatibility with the zoning laws. If such approval is granted, the construction would then fall within the jurisdiction of the individual, wearing his other hat, as building inspector. Thus, the functions and duties of the two positions are independent of one another (see, Informal Opinion No. 86-9; 1983 Op Atty Gen [Inf] 142).
We conclude that one person may simultaneously perform the duties of village building inspector and village zoning inspector.