John L. Rizzo, Esq. County Attorney, Genesee
You have asked whether incompatibility of office results when the law partner of a county legislator accepts a part-time position with the county as assistant public defender.
The doctrine of compatibility of office deals with the question whether one person may hold simultaneously more than one public office or position of employment (1984 Op Atty Gen [Inf] 110). Two offices are incompatible if one is subordinate to the other or if there is an inherent inconsistency between the duties of the two offices (ibid.). Thus, the facts you have presented do not involve the doctrine of compatibility of office.
The legislative body of a county may designate an attorney to serve as public defender and fixes his term and compensation (County Law, §716). If authorized and approved by the legislative body, the public defender may appoint assistant attorneys and other employees that he determines are necessary (ibid.). The public defender fixes the compensation of such aids and assistants within the amounts appropriated by the legislative body (ibid.).
We have indicated in our opinions that public officers have responsibility to exercise their official duties solely in the public interest (1984 Op Atty Gen [Inf] 122; Informal Opinion No. 86-29). Public officers should avoid circumstances which compromise their ability to make impartial judgments. The appearance of impropriety should be avoided in order to maintain public confidence in government. In our view, the subject county legislator should avoid participation in any matters concerning the public defender's office which may compromise these standards. Certainly, he should recuse himself from participating in any matters affecting the terms and conditions of employment of his law partner. Further, we note that municipalities and school districts are required to adopt a code of ethics (General Municipal Law, §806[1]). I recommend that you examine your local code of ethics to determine whether there are any provisions applicable to the question at hand.
You have not asked nor do we deal with the question whether the assistant public defender ethically can participate in matters where the county is a party. This is a question more appropriately within the jurisdiction of the New York State Bar Association's Committee on Professional Ethics.
We conclude that a county legislator whose law partner serves as assistant public defender should recuse himself from participating in any matters pertaining to the public defender's office which may compromise his responsibilities as a public official.