Hon. Wayne A. Feeman, Jr. Town Attorney, Scio

This is in response to your letter wherein you ask whether, in our opinion, there would be a conflict of interest if a Scio Town Justice were to be employed by the Town of Scio to run the town water and refuse disposal systems.

We are advised that the town justice is not a member of the town board, and we note that he could not be, pursuant to Town Law, §§60, 60-a.

As a general rule, an individual may hold two positions simultaneously unless there is some constitutional or statutory prohibition or some incompatibility between the positions.

There is no constitutional prohibition against a town justice holding another municipal job. A potential statutory bar is contained in Town Law, § 20[4], which prohibits a person from simultaneously holding more than one elective town office, but the position relating to the water and disposal systems is appointive, so the Town Law would not be violated. Another potential bar is Article 18 of the General Municipal Law, which relates to conflicts of interest of municipal officers and employees. General Municipal Law, § 801, addresses specific conflicts of interest involving contracts and payments thereunder to municipal officers or employees who would also approve or authorize payment individually, or as a member of a board. As presented to us, we find no violation of General Municipal Law, § 801, in your situation.

Incompatibility of office implies an inconsistency in the functions of the two positions or the subordination of the one to the other so that the performance of one interferes with the performance of the other. The leading case on this proposition is People ex rel. Ryan v Green,58 N.Y. 295 (1874). We see no part of the duties of either position which would conflict with or subordinate the holder of one position to the other position.

Accordingly, in the absence of any conflict or incompatibility in holding the two positions, it is our opinion that the same person may simultaneously serve as Scio Town Justice and be employed by the Town of Scio to run the town water and refuse disposal systems.