Opn. No. ( 1980 )

Arkley L. Mastro, Jr., Esq. Village Attorney Scotia

You request an opinion whether a village attorney simultaneously may hold the office of part time assistant district attorney.

Village Law § 3-300 subd 4 states that except as otherwise provided by law, a person is not disqualified from holding a village office by reason of holding another public office unless such public officer could not fully discharge the duties and obligations of the village office while carrying out the duties and obligations of any such other office. Hence, even an officer of a village may hold another office unless there is a statutory prohibition, and a village attorney is an employee, not an officer, unless a local law of the village has created the office of village attorney. We assume that no prohibition exists due to any charter provision or local law of the county or of the village.

A conflict of interest can arise when two separate offices are held by the same individual if the duties of one are subordinate to the duties of the other. Where there is a conflict of interest, the acceptance of the second office vacates the first unless there is a statutory authorization to hold both or a recognition that both may be held simultaneously by the same individual.

We draw to your attention Village Law § 20-2006, in which it is stated that the village attorney may be given permission by the village board of trustees to be designated by the district attorney to prosecute, in the name of The People, violations of a village ordinance or local law or an offense, infraction or criminal act occurring within the village. Please note that this reference is made to Village Law §20-2006 only to illustrate that the Legislature does not consider the two positions to be incompatible; it is not intended to illustrate the only way in which such dual positions may be created or the holder thereof paid.

In our opinion, there is no incompatibility between the office of part time county district attorney and the part time employment of the same person as village attorney in a village within the same county and one person simultaneously may hold both of those positions.