Donald R. Guerra, Esq. Sloan Village Attorney

You requested an opinion whether the mayor of a village simultaneously may hold the position of town councilman of the town in which that village is located.

In an informal opinion of this office reported in 1970 Op Atty Gen 41 we concluded that the simultaneous holding of the two public offices of village board member and town board member of the town in which the village lies constitutes an incompatibility of office. A copy of that opinion is enclosed herewith. We take this opportunity of repeating our view that such dual officeholding does constitute an incompatibility of office because it is inevitable that the individual holding both offices will be deciding upon the advisability of acts in both of that individual's official capacities. Such a decision must occur at least once every year under Highway Law § 277 when the town budget is being prepared. On that occasion, there is a necessary balancing of the interests of the two municipalities in determining whether real property in the village will be exempted from taxes for certain highway purposes under Highway Law § 141 subdivisions 3 and 4. There are a substantial number of other possibilities for balancing of interests to occur, particularly under General Municipal Law §§ 119-m,119-n and 119-o (the Municipal Cooperation Law). Declining to take part in such a determination does not cure the impropriety of the simultaneous holding of the two offices.

In our opinion, the same person may not hold simultaneously the two public offices of member of a village board of trustees and member of the town board of the town in which the village lies.