Requestor: William H. Walker, Jr., Esq., Town Attorney Town of Henrietta 349 West Commercial Street, Suite 3400 East Rochester, N.Y. 14445

Written by: James D. Cole, Assistant Attorney General in Charge of Opinions

You have asked whether the positions of town building inspector and member of the county legislature are compatible.

Under section 411 of the County Law, an elective county officer is not eligible to hold at the same time any other elected town or county office or city supervisor. In that the position of town building inspector is appointive, the holding of that position is not within the prohibition of this section.

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 interests 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.

We see no incompatibility between these two positions. The town building inspector is responsible for ensuring that construction is in accordance with State and local codes. A county legislator participates in the determination of policy on behalf of county government. There does not appear to be any conflict between the duties of these two positions.

We conclude that the positions of town building inspector and county legislator are compatible.

The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.