Informal Opinion No. ( 1989 )

Gerard J. Pisanelli, Esq. Village Attorney, Pawling

You have asked whether a person may hold simultaneously the positions of street foreman, code enforcement officer and part-time police officer in a village.

In the absence of a constitutional or statutory prohibition against dual-officeholding, one person may hold two offices simultaneously unless they are incompatible. The leading case on compatibility of office isPeople ex rel. Ryan v Green, 58 N.Y. 295 (1874). In that case the Court held that two offices are incompatible if one is subordinate to the other or if there is an inherent inconsistency between the two offices. The former can be characterized as "you cannot be your own boss", a status normally easy to see. The latter is not easily characterized, for one must analyze the duties of the two offices to ascertain whether there is an inconsistency. An obvious example is the inconsistency of holding both the office of auditor and the office of director of finance.

There are two subsidiary aspects of compatibility. One is that, although the common law rule of the Ryan case is limited to public offices, the principle equally covers an office and a position of employment or two positions of employment. The other is that, although the positions are compatible, a situation may arise where one has a conflict of interests created by the simultaneous holding of the two positions. In such a situation the conflict is avoided by declining to participate in the disposition of the matter. If such situations are inevitable as opposed to being possibilities, there is an inherent inconsistency in the positions.

You have informed us that the street foreman leads a small to medium size group of laborers in construction, maintenance and repair activities. The work includes resurfacing of streets, repair of water and sewer lines, maintenance of parks and collection and incineration of refuse.

You have informed us that the code enforcement officer has responsibility for inspection of the construction and repair of buildings; enforcement of local building, zoning and plumbing regulations; enforcement of the multiple residence law; and the inspection of the installation of roads and related facilities including drains and water and sewer facilities.

Village police officers are responsible for law enforcement in the village.

You informed us that the code enforcement officer is responsible for the inspection of highways and sewer lines constructed or repaired by public works employees. Thus, should the street foreman also serve as code enforcement officer, he would be placed in the position of having to review work performed under his direct supervision and by his fellow public works employees. In our view, the position of street foreman is incompatible with the position of code enforcement officer. We see no incompatibility, however, between either of these two positions and the position of part-time village police officer.

We conclude that the positions of street foreman and code enforcement officer of a village are incompatible.