Requestor: Philip J. Patti, Esq., Town Attorney Town of Fremont 230 Main Street Hornell, N Y 14843
Written by: James D. Cole, Assistant Attorney General in Charge of Opinions
You have asked whether a person may hold simultaneously the positions of member of a town planning board and member of a town zoning board of appeals.
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.
You have indicated that under your zoning laws, the zoning board of appeals reviews decisions of the planning board. In prior opinions of this office, we have found that positions are incompatible, based on conflict of duties, where one officeholder is empowered to review decisions made by another officeholder. Informal Opinions Nos. 91-35, 91-39, 89-36. Thus, it appears that under your zoning regulations the positions of planning board member and zoning board of appeals member are incompatible.
We conclude that where local zoning regulations give the zoning board of appeals authority to review decisions made by the planning board, one person should not simultaneously hold the positions of planning board member and zoning board of appeals member.
The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.