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Volume 4 - Opinions of Counsel SBEA No. 91

Opinions of Counsel index

Compatibility of office (town assessor - town budget officer) - Real Property Tax Law, § 1522; Town Law, § 103:

The offices of appointed town assessor and town budget officer are compatible.

Our opinion has been requested as to whether the offices of appointed town assessor and appointed town budget officer are compatible positions.

Section 1522 of the Real Property Tax Law describes the office of the single appointed assessor. Subdivision 1 thereof provides in part as follows:

. . . An assessor may be employed by the local government in any other position not incompatible with the office of assessor.

“Budget officer” is defined in subdivision 2 of section 103 of the Town Law to provide as follows:

2. “Budget officer” shall mean the supervisor or, in towns which have more than one supervisor, the presiding supervisor; provided that the supervisor or presiding supervisor may appoint, to serve at his pleasure, any person including a town officer or employee, other than a member of the town board, to be budget officer. When a person other than the supervisor has been appointed as budget officer, the supervisor, in the event of a vacancy in the office of budget officer shall serve as budget officer unless and until another person shall be appointed as provided in this subdivision. (emphasis added)

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. However, 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).

“Public offices are incompatible when their functions are inconsistent and their performance by one and the same person results in antagonism and a conflict of duty so that conceivably the incumbent of one cannot faithfully discharge with propriety the duties of both . . .” (1951, Op.Atty.Gen. 101) . For example, 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, 38 Misc.2d 564, 237 N.Y.S.2d 469, aff’d, 19 App.Div.2d 777, 242 N.Y.S.2d 630).

Pursuant to section 104 of the Town Law, the head of each administrative unit must yearly submit to the budget officer an estimate of revenues and expenditures of such administrative unit for the next fiscal year. As “administrative unit” is defined in section 103 to include office, the assessor must also submit such an estimate. While incompatibility could be alleged since the assessor will be submitting such statement to himself in his other capacity as budget officer, clearly the situation must have been contemplated and approved by the Legislature since it allowed a town officer to be appointed as budget officer. Thus, any town officer appointed to the position of budget officer would be in a similar position, assuming he was the head of an administrative unit.

The budget officer is required to prepare a tentative budget using the estimated revenue and expenditure statement of the various administrative units in the town (Town Law, § 106). However, once he files the tentative budget with the town clerk pursuant to such section, his functions as budget officer would seem to be at an end. Thereafter, the budget is in the hands of the town clerk and the town board.

Since the Legislature has apparently approved of a town officer functioning as town budget officer, and since the town budget officer is concerned with the budget only in its tentative form, it is our opinion that the offices of town assessor and town budget officer are compatible.

March 21, 1975