Gary L. Curtiss, Esq. Assistant County Attorney, Ontario
You ask whether one person may hold simultaneously the positions of town assessor and account clerk-typist in a county department of real property tax services.
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.
You have informed us that the duties of the account clerk-typist are clerical. The person occupying this position has no responsibility for the determination of policy and makes no discretionary decisions. Under these circumstances, we see no potential for incompatibility. Incompatibility results from an inconsistency or antagonism in the functions and duties of two positions held by the same person. Since the account clerk-typist exercises no independent judgment and works exclusively at the direction of others, there is no potential for incompatibility.
We conclude that one person may hold simultaneously the two positions of town assessor and account clerk-typist in a county department of real property tax services.