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HomeMy WebLinkAboutTown Law specific to F I Ferry District,JUN. 15,2009' 2:53PM 1982 N.Y. Op. Atty. Gen. 1982 ~.Y. Op. Atty_ Gen. (Cite as: 1962 WL 170607 (Inf.) 84, 1982 WL 170607 (N.Y.A.G.) (N.Y.A.G.)) NO, 734 P, 9age'l C office of the Attorney General State of New York '1 Informal Opinion No. 82-4 January 20,'1952 TOWN LAW, § 20(4) a~d (S); L 1947, Ch 699, § ~ 8, 5, 5(f), 6; L 1950, Ch 82, § ~ 1, 2; L 1977, Ch 276. A person may not simultaneously serve as a member of the Board of Commissioners of the Fishers Island Ferry District and as a member of the Town Board of Southold. Robert W_ Tasker, Esq. Town Attorney Town of Southold 425 Main Street Greenport, L.I., New York 11944 You have asked whether a member of the Board of Commissioners of the Fishers Island Ferry District (commissioners) may also serve as a merober of the Board of the Town of Sou~hold of which Fishers Island is a part. You note that by special act, the town elects a town justice who must reside on Fishers Island and who by virtue of that office serves as a member of the $outhold Town Board (L 1977, ch 276)_ The question arises because at the November 1981 election, an incumbent commissioner was elected town justice for Fishers Island. Commissioners are elected by the residents of the district (L 1947, ch 699, § 5). In the absence of a constitutional or statutory prohibition against dual- officaholding, one person may hold two offices simultaneously unless they are incomp~tzble. The leading case on compatibility of office is People ax tel. Ryan v Green, 58 NY 295 (1874~- In that case the Court held t~at two o~fic~s 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 cauno~ be your own boss', a status normally easy to see. The ~etter 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 beth the office of auditor and the office of director cf ~inance. 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 ha~ a conflict of interest created by the simultaneous holding of the two positions. In such a situation the conflict ia avoided by declining to participate in the disposition of the matter. If such situations ara inevitable as Copt. e 2004 west. ~o Claim to 0rig. U.S. GoVt. Works. ~/UN, 15,2009 2:54PM ~..<~ 1982 ~.Y- Op. Atty. Gen. (Cite as: 19S2 WL 170607 (Inf.) 84, 1982 WL 170607 (N.Y.A.G.) (N.Y.A.G.)) NO, 734 P. opposed to being possibilities, there is an inherent inconsistency in the positions. We know of no constitutional or statutory prohibition on holding the two offices in q%lestion. (Section 20[%] of the Town Law prohibits holding two elective town offices. Comm/ssioners are not town officers [id., subd ($)].) ~he q~estion then is whether membership on the two boards is inconsistent under the Ryan rule. We believe uhat the answer is yes. The special act establishing the ferry district, chapter 699 of the Laws of 1949 as amended, contains a number of provisions giving the town board certain veto or supervisory powers over actions of the hoard of commissioners. For example; *2 a. The town board may choose whether to acquire boats and equipment or to authorize the commissioners to do SO (§ 3). bi The ~own board must approve the tez~ns and conditions of a~y contract which the co~m~issioners intend to let for a private entity to operate the ferry (L 1950, ch a2, § 1). c. The town board must approve the commissioners' appointments and removal of employees and the amount of their compensation (L 1947, Ch 699, ~ 5 If]). d. The town board audits all claims against the ferry district, determines the amount of the commissioners' petty cash fund, and audits expenditures from the found (id., $ 6). e- Comm/ssioners are reimbursed for their expenses. Expenses are reimbursed ~after audit and approval by the town board' {L 19S0, oh 82, § 2). These examples are sufficient to.establish that it is inevitable that there will be many occasions when the Fishers Island tew~ justice as town board member would be passing upon his activities as a commissioner_ We conclude that the offices are incompatible. (we note that a person who 'qualifies for a second and incompatible office is generally held to vacate, or by i~licatio~ resign, the first office'. See Matter of-Smith v Dillon, 967 App Div 39, 43 [3d Dept. 1943].) The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of views of this office. Very truly yours, Robert Abrams Attorney General George D- Braden Assistant Attorney General in Charge of Opinions 1982 N.Y. Op. Atty.-Gen. (Inf.) 84, 1982 WL 170607 (N.Y.A.G.) END OF DOCUMENT Copt. e 2004 West. No Claim to Orig. U.S. Govt. Works.