Opn. No. ( 1976 )

HON. RICHARD C. SOUTHARD Town Attorney, Wilson

This is in response to your letter of December 18, 1975, requesting the opinion of the Attorney General as to whether the offices of town supervisor and clerk of the county legislature are incompatible. You stated to us in a telephone conversation following receipt of your letter that Niagara County has an elective county legislature, and that the legislature appoints a clerk whose duties are as prescribed in section 475 of the County Law. The newly elected Supervisor of the Town of Wilson wishes to accept appointment as Clerk of the Niagara County Legislature. The Town of Wilson, which you represent, is located within Niagara County. You inquire whether the simultaneous holding of both offices by such person would create an incompatibility.

The general rule is that the same person may hold two public offices at the same time unless there is some constitutional or statutory prohibition or some incompatibility between the two offices.

In the present instance, we do not find any constitutional or statutory bar to the simultaneous holding of both offices by the same person. Under the common law, however, public offices are deemed incompatible when their functions are inconsistent and their performance by one and the same person results in antagonism and a conflict of duty, so that conceivably the incumbent of one cannot faithfully discharge with propriety the duties of both (People ex rel. Ryan v. Green, 58 N.Y. 295).

A comparison of the duties of clerk of the county legislature, as enumerated in section 475 of the County Law, with the duties of a town supervisor, as enumerated in section 29 of the Town Law, does not disclose any apparent inconsistencies that would prevent a person holding both offices from faithfully discharging the duties of each. Since Niagara County has an elective county legislature, the Supervisor of the Town of Wilson does not sit as a member of the board of supervisors. We assume, of course, that the simultaneous holding of both offices would not prevent the individual in question from devoting the amount of time needed to properly discharge the duties of both offices.

We conclude, therefore, that the offices of Supervisor of the Town of Wilson and Clerk of the Niagara County Legislature, when held by the same person at the same time, are not incompatibleper se.