Opn. No.

Requestor: Stephen M. Abdella, Esq., County Attorney County of Chautauqua Gerace Office Building 3 North Erie Street Mayville, N.Y. 14757-1007

Written by: James D. Cole, Assistant Attorney General in Charge of Opinions

You have asked whether the spouse of a county legislator may be appointed as a member of the county alcoholic beverage control board.

State law does not prohibit a county legislator's spouse from serving as a member of a county alcoholic beverage control board. Alcoholic Beverage Control Law §§ 16, 40. The doctrine of compatibility of office applies to the holding by one person of two or more offices or positions of employment. People ex rel. Ryan v Green, 58 N.Y. 295 (1874). It is inapplicable to a husband and wife serving in two separate positions in local government.

We have found, however, that a spouse should recuse herself or himself in the determination of salary and terms and conditions of employment of her or his spouse. 1988 Op Atty Gen (Inf) 123; 1985 Op Atty Gen (Inf) 89. That concern is not present here in that the members of the board are appointed by the county executive. See, Alcoholic Beverage Control Law § 31(2). Further, the expenses of local alcoholic beverage control boards are funded by the State. Id., § 39.

We conclude that the spouse of a county legislator may serve as a member of a county alcoholic beverage control board.

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.