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Volume 2 - Opinions of Counsel SBEA No. 21

Opinions of Counsel index

Board of assessment review (compatibility of office) - Real Property Tax Law, § 1524:

The offices of village trustee and member of the town board of assessment review are incompatible.

          We have received an inquiry concerning the composition of a town board of assessment review. The specific question is whether a trustee of a village may sit as a member of the town board of assessment review.

In our opinion, the two offices in question are incompatible. The village may own taxable real property in the portion of the town outside the village, and if a grievance complaint were filed by the village then a village officer, in his capacity as a town officer, would be required to review the assessment of the property owned by the municipality of which he is an officer. And, as a village officer, the board member might conceivably have a very strong financial and political interest in obtaining a reduced assessment for such property. Obviously, the interests of a village official do not necessarily coincide with the interests of an official of the town in which the village is located. Such interests may clearly be divergent where the assessment roll prepared for village purposes differs from the town assessment roll.

Since a public office is a public agency or trust created for the benefit and in the interest of the people, the holder of such an office is subject to such regulations and conditions as the law may impose.

In the situation in which a single individual holds more than one public office, it is a well settled rule of the common law that a public officer cannot hold two incompatible offices at the same time (Smith v. Dillon, 267 App. Div. 39, 44 N.Y.S.2d 719). The basis of this rule is to prevent multiple office holding so that offices and places of public trust will not accumulate in a single person. And the corollary to this rule is that a person may hold two offices which are not incompatible except where such practice is prohibited by constitutional or statutory provision (People ex rel. Ryan v. Green, 58 N.Y. 295).

As to definition, incompatibility as between two offices is an inconsistency in the functions of the two; for example, as between judge and clerk of the same court or as between an officer who presents his personal account subject to audit and an officer whose duty it is to audit it. That is, incompatibility between two offices is an inconsistency in the functions of the two so that from their nature and relationship, they ought not to be held by the same person. An antagonism would result if one person attempted to faithfully and impartially discharge the duties of both offices. If the offices are subordinate one to the other, or if they have the right to interfere one with the other, then such offices are incompatible at common law (People ex rel. Ryan v. Green, supra; Fauci v. Lee, 19 App. Div.2d 777, 242 N.Y.S.2d 630).

At common law, and under constitutional and statutory prohibitions against the holding of incompatible offices, a person who accepts and qualifies for a second and incompatible office is generally held to vacate, or by implication resign, the first office (Metzger v. Swift, 258 N.Y. 440, 180 N.E. 112).

We realize that there may be some question concerning our opinion as to the existence of incompatibility between the two positions in question. Therefore, we wish to state in addition that we firmly believe that the existence of this situation is not in the best interests of the localities involved. The Assessment Improvement Program, which mandates the independent boards of assessment review, is a new program which must be initiated and established in such a way as to inspire public confidence. Municipalities should scrupulously avoid appointing to the board of assessment review anyone whose interests, motives or abilities may be subject to even the slightest question.

In this regard attention is called to the conflicts of interests provisions related to municipal employees and contained in Article 18 of the General Municipal Law. In addition, a county board of ethics may have been established pursuant to section 808 of such law, and, if so, relevant directives may have been issued by such board.

Finally, it should be borne in mind that one of the principle theoretical bases of the independent board of assessment review is the concept of citizen review of assessments. Section 1524 of the Real Property Tax Law specifically prohibits the appointment of municipal officers who would comprise a majority of the board of assessment review. This prohibition, in conjunction with those which require staggered terms of office and which prohibit assessors from being members of the board, is clearly intended to provide taxpayers with a grievance forum which is not a representative of the municipal government.

And although officers of a village are not officers of the municipal government of the assessing unit for which this board of assessment review is established, the fact that the village is a significant governmental entity within the town is sufficient to detract from the citizen review aspect of the board.

In conclusion, we would strongly advise any local government not to appoint members of any local government within the assessing unit to the board of assessment review for that assessing unit.

June 14, 1972