Craig R. Snyder, Esq. Town Attorney, Rathbone
You have asked whether one person may serve simultaneously as the deputy town clerk and as the town tax collector.
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.
Section 36 of the Town Law authorizes in a town of the second class the abolition of the office of tax collector or receiver of taxes and the transfer of the tax collection function to the town clerk. Thus, it is clear that the Legislature did not envision any conflicts between the two functions nor do we see any basis for a finding that the two offices are incompatible.
We conclude that the offices of deputy town clerk and town tax collector are compatible.