Hon. Leonard Berkowitz Deputy Town Attorney, Orchard Park
This is in reply to your letter of May 17, 1979 in which you seek this office's opinion as to the propriety of your serving concurrently in both your present capacity as Deputy Town Attorney of the Town of Orchard Park and as a member of the Zoning Board of Appeals of the Village of Orchard Park. Your communication states that as Deputy Town Attorney you advise both the Town Zoning Board of Appeals and the Town Planning Board, and you further state that "Of course, these bodies do not deal with any questions involving property within the corporate Village of Orchard Park".
The General Municipal Law, Article 18 (relating to conflicts of interest, direct or indirect, of pecuniary or material benefit accruing to a municipal officer or employee as the result of a contract with the municipality which such officer or employee serves) does not preclude your serving concurrently in the two positions concerned.
The common law doctrine of incompatibility must be considered. This doctrine declares to be incompatible any two public offices in which there exists an inconsistency of function or where the basic duties of each office would necessarily interfere with the other, or where the holder of one would be required to account or to be subordinate in some way to the other (People ex rel. Ryan v Green, 58 N.Y. 295; Corsall vGover, 174 N.Y.S.2d 62). On the basis of the facts presented in your letter of May 17, 1979 I find there is no problem of incompatibility or common law conflicts of interest.
However, it must be noted that there can be infrequent instances where land use questions must be resolved concerning real estate on or overlapping the Town-Village boundary line. In such instances, you as an attorney must be constantly alert to the possibility of a conflict between the interest of the Town which you are advising and those of the Village, and the propriety of your dual status can be upheld only so long as situations involving such a conflict are avoided.