Daniel T. Manning, Jr., Esq. Attorney for the Town of Keene
You state that in the Town of Keene the office of town superintendent of highways is elective and that an elected town board of assessors has been retained. You also state that the town superintendent of highways died and the vacancy in office has not yet been filled. You report that you advised the town board (with which advice we agree) that an elected town assessor may not continue to hold the office of assessor if appointed town superintendent of highways to fill the vacancy in that office because this would run counter to the prohibition contained in Town Law § 20 subd 4.
You inquire whether an elected town assessor simultaneously may hold the office of deputy town superintendent of highways if the town board creates the deputy office and appoints the elected assessor to it.
Town Law § 32 subd 2 authorizes the town board of any town at any time to establish the office of deputy town superintendent of highways and directs that the office is to be filled by the superintendent or, if not done within five days, by the town board.
In 1975 Op Atty Gen 312 (copy enclosed) we concluded that the same person simultaneously may hold the two offices of appointed assessor and elected superintendent of highways in the town. By a similitude of reasoning it is our opinion that the same person simultaneously may hold the two offices of elected town assessor and appointed deputy town superintendent of highways and that the town board, in a town where there is a vacancy in the elected office of town superintendent of highways, may create the office of deputy town superintendent of highways and, five days or more thereafter, appoint a deputy.