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January 19, 2011

The ground rules for individual holding two public offices simultaneously

The ground rules for individual holding two public offices simultaneously
Informal Opinions of the Attorney General, Informal Opinion 2000-9

Wondering if an attorney may simultaneously hold two different public offices? The answer: it depends on the situation!

The Attorney General recently advised Columbia County Attorney Beth A. O’Connor that an assistant county attorney could also serve as the mayor of a city located within the County (Informal Opinion 2000-9).

In contrast, the attorneys for Jefferson-Lewis BOCES were told that the office of district attorney was incompatible with that official’s membership on a BOCES or school board within his or her jurisdiction. [Informal Opinion 2000-13].

The standard applied by the Attorney General, citing Ryan v Green, 58 NY 295, is that except where prohibited by law, one person may hold two offices simultaneously unless they are incompatible.

What constitutes incompatibility for the purposes of dual office holding? Two offices are incompatible if one office is subordinate to the other or if there is an inherent inconsistency between the duties of the two offices.

In the assistant county attorney/mayor situation the Attorney General indicated that the two positions were compatible and based on the representation that the assistant county attorney would not engage in any legal matters involving the city, the duties of the two positions did not appear inconsistent.

In the district attorney/BOCES-school board situation, the Attorney General said that there appeared to be a conflict between the two offices in view of the district attorney’s broad discretion in determining when and in what manner to investigate suspected crimes. In addition, the Attorney General said that in view of the policy making functions involved in the BOCES/school board position, this dual office holding raises questions as to whether the district attorney can impartially carry out his [or her] broad prosecutorial discretion and, therefore, tends to undermine public confidence in the integrity of government.

In another dual office situation, the Attorney General concluded that an individual could simultaneously serve as a town assessor and as a member of a school board of a district that included the town [Informal Opinion 2000-14] because a town assessor determines the value of real property for the purposes of taxation while a school board member determines policy for the district.

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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