Informal Opinion No. ( 1989 )

Clyde A. Lewis, Esq. Town Attorney, Plattsburgh

You have asked whether an elected town clerk may be appointed to serve as the clerk of the town court.

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 interest 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.

The duties of the town clerk include the recording of deeds, collecting fees, maintaining records and assuring that various papers and certificates are filed (Town Law, § 30). These duties have no bearing upon the operation of the town court.

The office of clerk to the town court is authorized by the Uniform Justice Court Act (§ 2101[f]). The duties of the clerk are confined to the administration of the court and are not inconsistent with the duties of the town clerk (see, id., §§ 1403, 1501, 1704, 2103).

We conclude that the offices of town clerk and clerk of the town court are compatible.