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2014 NY Att'y Gen. Rep. & Op. 1 (2014)

handle is hein.nyattgen/nysag0135 and id is 1 raw text is: Village Law§§ 3-300(3), 3-301(2)(a), 3-301(2)(b), 3-301(3), 4-400(1)(c)(i), 4-400(1)(c)(ii), 4-402, 4-408; State Finance Law §§ 99-a, 99-a(3); Public Officers Law § 9 The positions of village clerk/treasurer and village court clerk are incompatible. April 3, 2014 Roger Monaco Informal Opinion Village Attorney No. 2014-1 Village of Oxford P.O. Box 391 20 Lafayette Park Oxford, New York 13830 Dear Mr. Monaco: You have requested an opinion relating to the compatibility of the positions of village clerk/treasurer (treasurer) and village court clerk. You have explained that the Village is considering either combining the two positions or appointing one person to serve in both positions to allow greater oversight of the court clerk position by the village board of trustees. As explained below, we are of the opinion that the positions are incompatible and thus one person may not perform the duties of both. In the absence of a constitutional or statutory prohibition against dual office- holding, one person may hold two offices simultaneously unless they are incompatible. Two offices are incompatible if their functions are inherently inconsistent, such as when one is subordinate to the other or one audits the accounts of the other. See O'Malley v. Macejka, 44 N.Y.2d 530, 535 (1978); Matter of Ryan v. Green, 58 N.Y. 295, 304-305 (1874). These principles apply to positions of public employment as well as to public offices. See Matter of Dupras v. County of Clinton, 213 A.D.2d 952 (3d Dep't 1995). We are not aware of any constitutional or statutory prohibitions against holding the two positions at the same time. Village Law § 3-300(3), which prohibits one person from holding both an elective and an appointive village office, does not apply here; even assuming both positions are offices, but see Op. Att'y Gen. (Inf.) No. 97-48 (clerk of town justice court is not public officer), neither is an elective office. Village Law § 3-301(3). And neither position is subordinate to the other: the treasurer is responsible to the village mayor and board of trustees while the court clerk performs duties at the request of the village justice. See Village Law §§ 3- 301(2)(a),(b),(3); 4-400(1)(c)(i),(ii); 4-402; 4-408. However, the duties of the positions conflict. The court clerk, who provides clerical and administrative assistance to the village justices, accounts for one important source of Village funds, namely the fines, fees, forfeitures, and THE CAPITOL, ALBANY, NEW YORK 12224-0341 - PHONE (518) 474-7201 e FAx (518) 473-8963 *NOT FOR SERVICE OF PAPERS http://ag.ny.gov

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