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November 2, 2010
Holbrook v Rockland Co, 260 AD2d 437
Most public officers and employees serve in one position at a time. Sometimes, however, an individual may be employed by two different jurisdictions simultaneously. Such dual employments generally require the knowledge and approval of the appointing authorities involved.*
Dual employments are often suspect -- particularly when both are purported to be “full-time” posts. Another consideration: is there the appearance of, if not an actual, a conflict of interest involved in a particular “dual employment” situation. As the Attorney General advised in an informal opinion:
In the absence of a constitutional or statutory prohibition against dual-office holding, one person may hold two offices simultaneously unless they are incompatible [Informal Opinions of the Attorney General 98-17, May 11, 1998].
The opinion notes that the “leading case on compatibility of office” is People ex rel. Ryan v Green, 58 NY 295. In Ryan the Court of Appeals said that “two offices are incompatible is one is subordinate to the other or if there is an inherent inconsistency between the two offices.”
The Holbrook case involved a “dual employment” situation, but with a novel twist. Here the “appointing authority” in each instance was the voter. Charles E. Holbrook had been elected to two different Rockland County public offices, by two different electorates, and, as a result, was simultaneously serving in two different elective offices in two different jurisdictions.
However, in 1993 Rockland County had passed a local law -- the so-called “two hats” law -- barring an elected county officials from holding any other elected town or village office [Rockland County Local Laws of 1993, #6]. In other words, an individual could not hold a county elective office if in so serving he or she would be simultaneously serving as a local elected officer in another public jurisdiction.**
Holbrook, who was elected to serve in the Rockland County Legislature, had also been elected to position of town supervisor of a town in Rockland County. He challenged Local Law 1993 #6, as well as a 1997 local law providing for reapportionment of election districts, contending that both local laws were invalid because they had been enacted without a voter referendum as mandated by Municipal Home Rule Law Section 23(2)(e) and (f).
The Appellate Division affirmed a ruling by a Supreme Court justice rejecting Holbrook’s complaint, holding that both local laws had been validly adopted. The decision noted that while Section 23(2)(e) and (f) requires a referendum if the proposed local law “changes the term of an elective office”, or “curtails any power of an elective officer,” Rockland’s “two hat” laws merely prohibited Rockland County legislators from simultaneously holding a second elective office. The Appellate Division said that the local laws in question neither changed the terms of an elective office nor curtail any powers of an elective officer.
* Dual employments, in which appointments to different positions are made, are not the same as a “joint appointment.” In a joint appointment, two [or more] appointing authorities jointly authorize the employment of an individual in a single position and the two appointing authorities typically share the personnel service costs.
** Local Law 1993, #6, permitted elected county officials then holding two elective offices to continue to serve in both offices until January 1, 1998.
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