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.

Beware of Face Book

Beware of Face Book
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Can employers get access to your Face Book account? Increasingly, the answer may be yes. In a New York case, where the plaintiff's physical condition was at issue, a lower court judge ordered that a defendant be granted access, Romano v. Steelcase, Inc., ___Misc.3d____(Suffolk Co. 2010). See also, Law.com discussion.

There are also some cases granting disclosure of Face Book accounts in the context of attorney disciplinary proceedings as discussed in Legal Prof Blog.

Moral of the story: Beware what you post on the internet. It can come back to haunt you!

Mitchell H. Rubinstein

Hat Tip: Legal Writing Prof Blog

NYPPL Comments: See, also, Matson v. Board of Education of the School District of City of New York, USCA, 2nd Circuit, 09-3773-cv.

The Matson decision by the U.S. Second Circuit Court of Appeals concludes that “Not all ‘serious medical conditions’ are protected by a constitutional right to privacy” and is posted by NYPPL at http://publicpersonnellaw.blogspot.com/2011/01/not-all-serious-medical-conditions-are.html
.

At-will employee’s claims of wrongful termination and defamation rejected by court

At-will employee’s claims of wrongful termination and defamation rejected by court
DiLacio v New York City Dist. Council of United Bhd. of Carpenters & Joiners of Am., 2011 NY Slip Op 00175, Appellate Division, Second Department

George DiLacio, Jr., sued the United Brotherhood alleging “wrongful termination of employment and defamation” when it included the phrase “severe dereliction of duty” in the letter it sent to him terminating his employment.

The Appellate Division rejected DiLacio’s allegations, noting that because he was “an employee at will,” his argument that the Brotherhood violated its duty to terminate his employment "only in good faith and with fair dealing" failed to state a valid cause of action under New York law.

Under New York law, said the court, "absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired."

The Appellate Division also rejected DiLacio’s claim of defamation, explaining that although the letter advising him of his termination contained the phrase "severe dereliction of duty," the letter had not “been published” to anyone other than DiLacio himself.

NYPPL Comments: In Donato v Plainview-Old Bethpage School District, 96 F.3d 623, the Second Circuit Court of Appeals held that a name-clearing hearing is available to the individual when he or she is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence.

As the court found that that there was no “contemporaneous public announcement” of the Brotherhood's statement, presumably DiLacio did not have a right to demand a “name-clearing hearing.” [See, also, Sassaman v Brant, 70 AD3d 1026, a lawsuit triggered by an employee's complaint to a superior concerning a co-worker’s conduct, summarized in NYPPL at http://publicpersonnellaw.blogspot.com/2010/03/employees-memorandum-to-her-superior.html ].

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00175.htm