Untitled New York Attorney General Opinion
2017-2
| N.Y. Att'y Gen. | Dec 18, 2017Background
- Request by Delhi Joint Fire District asking if one person may serve as assistant fire chief of a joint fire district and as county director of emergency services.
- Assistant fire chief: district officer who acts for the fire chief when absent, controls department members at fires, supervises equipment and officers, and answers to the fire chief and board of fire commissioners (Town Law §§176-a, 176, 189-a).
- County director of emergency services: county officer who plans, implements, and administers countywide emergency services programs, mutual aid, communications, training, liaison with state/local agencies, and emergency continuity plans (Exec. Law §23 duties described in request).
- Concern raised that an individual might remain at county job during a fire instead of responding as assistant chief; question whether that creates legal incompatibility of offices.
- Attorney General informal opinion: incompatibility requires inconsistent or subordinate duties, not mere physical inability to perform both roles simultaneously; concluded the positions are legally compatible, though abstention could resolve specific conflicts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether physical inability to perform both roles makes offices incompatible | Physical impossibility (e.g., at work during a fire) makes holding both offices incompatible | Physical impossibility is not the common-law test for incompatibility | Physical impossibility alone does not render offices incompatible; not a legal bar |
| Whether duties are inconsistent or one office subordinate to the other | Overlap in emergency duties could create conflicts or subordination | Offices operate in separate governments; assistant chief answers to district, director oversees county programs; duties are complementary not conflicting | No inherent inconsistency or subordination; offices are compatible; abstention available for specific conflicts |
Key Cases Cited
- People ex rel. Ryan v. Green, 58 N.Y. 295 (1874) (physical impossibility is not the incompatibility test)
- O’Malley v. Macejka, 44 N.Y.2d 530 (1978) (incompatibility exists where one office is subordinate to or subject to review by the other)