Opn. No. ( 1978 )

Hon. William D. Bavoso Corporation Counsel

This is in response to your letter wherein you ask for an opinion of the Attorney General whether under the provisions of the Charter of the City of Port Jervis, the Acting City Judge of the City of Port Jervis may simultaneously act as Chairman of the Zoning Board of Appeals of that City.

The Charter of the City of Port Jervis, Article II, § C2-1 enumerates the City officers of that City including the Acting City Judge but does not include Chairman or member of the Zoning Board of Appeals. Section C2-2, contained in said Article II, provides that no person shall simultaneously hold more than one City office.

General City Law, § 81 provides for the appointment in certain cities, such as in the City of Port Jervis, of a board of (zoning) appeals vested with quasi-judicial powers.

As a general rule, the "duties of a public official involve some exercise of the sovereign-those of public employees do not. The one has independent official status; the other has rights under a contract of employment." (People ex rel. Dawson v Knox, 231 App. Div. 490 [3d Dept, 1931], affd 267 N.Y. 565.)

It is apparent that the Chairman of the Board of (Zoning) Appeals of the City of Port Jervis exercises some of the sovereign power and is a local public officer of that City.

Accordingly, we conclude that under the provision of the Charter of the City of Port Jervis, § C2-2, the Acting City Judge of that City may not simultaneously serve as Chairman of the Board of (Zoning) Appeals.