David J. Roman, Esq. Town Attorney, Volney

You have asked whether one person may serve simultaneously as a member of a town planning board and as an elected town assessor.

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 interest 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. If such situations are inevitable as opposed to being possibilities, there is an inherent inconsistency in the positions.

Neither of these positions is subordinate to the other. The planning board is responsible for establishing a master plan for development in the town (Town Law, § 272-a). Furthermore, the town board may authorize the planning board to review and approve applications for site-plan development (id., § 274-a) and subdivision development (id., §§ 276, 277). The assessor is responsible for the assessment of real property for purposes of taxation (Real Property Law, Art 5). These two functions are completely separate and independent of one another, removing any potential for inconsistency or incompatibility between the duties of the offices (see 1986 Op Atty Gen [Inf] 94).

We conclude that one person may simultaneously serve as a member of the town planning board and as the town assessor.