John T. Snell, Esq. Attorney for the Town of Schuyler Falls
You request an opinion whether the offices of town councilman and county director of weights and measures in the county containing that town may be held simultaneously by one person.
There is no bar to one individual's simultaneously holding two public positions unless in relation to one or both of them, there is a constitutional or statutory prohibition (we know of none) or some similar disqualification contained in a municipal charter, a local law or a local code of ethics or there has been a contrary ruling by a local board of ethics. Naturally, we are unable to comment on such local provisions as may be applicable. (Qualifications for office may be set by local action under Municipal Home Rule Law § 10 subd 1 par (ii) subpar a cl (1). Codes of ethics are required of each municipal government, and boards of ethics are authorized in each municipal government by General Municipal Law Article 18 (§§ 800-809).)
Another bar would be that the two positions are incompatible. The classic description of the elements of incompatibility in office appears in Peo.ex rel. Ryan v Green, 58 N.Y. 295 (1874), which provides:
"The force of the word, in its application to this matter is, that from the nature and relations to each other, of the two places, they ought not to be held by the same person, from the contrariety and antagonism which would result in the attempt by one person to faithfully and impartially discharge the duties of one toward the incumbent of the other. * * * The offices must subordinate one [to] the other, and they must, per se, have the right to interfere, one with the other, before they are incompatible at common law * * *."
An examination of the duties of a county director of weights and measures, contained in Agriculture and Markets Law Article 16 (§§ 176-197), and the duties of a town councilman contained in various sections of the Town Law discloses no such subordination or interference.
In our opinion, the same person simultaneously may be a county director of weights and measures and a town councilman of a town located in that county.