Requestor: Peter D. Johnson, Esq., Senior Assistant Town Attorney Town of Smithtown P.O. Box 575 Smithtown, N Y 11787

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

You have asked whether a person may hold simultaneously the positions of deputy town assessor and special counsel for tax certiorari proceedings.

The assessor is responsible for the assessment of real property for tax purposes. The special counsel defends the municipality against challenges to real property assessments.

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 basis for incompatibility here. One position is not subordinate to the other. Nor is there a conflict of the duties of the two positions. Both the deputy assessor and the special counsel have the common interest of defending the municipality's assessment.

We conclude that the positions of deputy town assessor and special counsel for tax certiorari proceedings 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.