Informal Opinion No. ( 1986 )

Stephen W. Kretz, Esq. Village Attorney, Amityville

You have asked whether one person may simultaneously hold the positions of assistant village building inspector and member of the village planning board.

You have informed us that the assistant building inspector is charged with enforcement of the village sign code. Specifically, she advises merchants and others concerning the requirements of the sign code and issues summonses when violations are found. She also appears in village court in connection with prosecutions of these offenses.

According to your letter, as a member of the planning board, this individual takes part in the review of applications for sign permits, which are required for all new signs in the village. Under the village sign code, the planning board reviews proposed signs for compatibility with standards as to design and color.

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.

Neither of the positions is subordinate to the other. Additionally, it appears from your description of the two positions that their duties are consistent. The village planning board makes determinations on applications for sign permits. It is the responsibility of the assistant building inspector to make sure that new signs are approved by the planning board and to ensure compliance with determinations made by the planning board. Thus, the two positions in question have the common purpose of ensuring conformity with the village sign code. This is not a situation where one position or board has review powers over decisions made by another individual or board. In that case the duties of the two positions would be incompatible.

We conclude that one person may simultaneously hold the positions of assistant village building inspector and member of the village planning board.