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Volume 6 - Opinions of Counsel SBEA No. 39

Opinions of Counsel index

Compatibility of office (county director of real property tax services, employee - assessor) - Real Property Tax Law, §§ 1522, 1532:

There is incompatibility of office when a county director of real property tax services holds the additional office of assessor in the county which he serves. Whether similar incompatibility exists for an employee of the county real property tax services agency depends on the facts of the particular situation.

Our opinion has been sought concerning the compatibility of the office of county director of real property tax services, or an employee of the county real property tax services agency, with the office of elected or appointed assessor.

In a previous opinion discussing compatibility of office (3 Op.Counsel SBEA No. 90), we said:

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 officers 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).

The leading case on the issue of compatibility in office is the aforementioned Ryan v. Green. In that case, it was contended that it would be impossible for an individual to function as a State Assemblyman and still be the deputy clerk of a court in New York City. The court said that “physical impossibility is not the incompatibility of the common-law.” Rather, it stated:

Incompatibility between two offices, is an inconsistency in functions of the two; as judge and clerk of the same court-officer who presents his personal account subject to audit, and officer whose duty it is to audit it. . . . Where one office is not subordinate to the other, nor the relations of one to the other such as are inconsistent and repugnant, there is not that incompatibility from which the law declares that the acceptance of the one is the vacation of the other (58 N.Y. at 304).

In a 1975 opinion, the Attorney General recognized that the physical impossibility doctrine has continued to be rejected as grounds for incompatibility of office by New York’s courts. However, the Attorney General also stated that “if the duties of one position are so time consuming that the duties of the other position are not properly performed this might give rise to a proceeding for the removal of the officer under section 36 of the Public Officers Law” (1975, Op.Atty.Gen. 312).

The duties of the county director are set forth in section 1532 of the Real Property Tax Law. Among these duties are those of advising assessors on assessment procedures and providing advisory appraisals to cities and towns, an important and perhaps time consuming function. While the duty to advise assessors on assessment practices is a year round job, many of these inquiries are presented to the county director by the assessor during that portion of the year when the assessment roll is being prepared. If the county director were to function as an assessor in one of the towns within the county, it is obvious that his availability to answer inquiries from the assessors of the other towns would be seriously hampered. This situation would appear to be of the type referred to in the aforementioned 1975 Attorney General’s opinion.

Additionally, from time to time the county director is presented with factual situations where his decision may benefit one town to the detriment of another. For example, he must prepare and maintain tax maps (Real Property Tax Law, § 1532(l)(a)) which are then used by assessors “in their assessment work” (id., § 568(5)). Parcel and town boundaries must be shown on the map. Obviously, if the county director were to be the assessor of one of these towns, his objectivity could be seriously eroded. While perhaps it may not be said that the position of assessor is “subordinate” to the county director, it is our opinion that this situation would render the two offices incompatible within the test set down by the court in Ryan v. Green, supra.

Although it is not specifically included within the list of the county director’s duties in section 1532, he has been given additional assigned duties pursuant to the so-called “Correction of Errors” law (Real Property Tax Law, Article 5, Title 3). For example, pursuant to subdivision 4 of section 554 of the law, the county director must investigate and report on alleged clerical errors and unlawful entries appearing on assessment rolls. Thus, a county director-assessor would be in the position of reviewing his own work in this situation. This was not the intent of the draftsmen of this law who obviously contemplated an independent examination of the facts by someone other than the assessor.

Accordingly, it is our opinion that the office of county director of real property tax services and assessor are incompatible. It seems irrelevant whether the assessor is elected or appointed.

As to whether the same incompatibility would exist with reference to an employee of a county real property tax service agency, we have said previously that “[a] part-time town assessor may simultaneously serve as a county tax map technician, the situation not presenting a conflict of interest” (3 Op.Counsel SBEA No. 62). However, this opinion should not be read as concluding that staff members of a county director’s office may be appointed or elected to any local assessment position. Rather, each factual situation must be examined on a case-by-case basis. That is, whether or not a conflict of interest exists may depend on both the office to which the individual seeks to be appointed or elected and his or her duties within the county director’s office. Additionally, i the municipal code of ethics should be examined to see if the situation under review has been considered therein (see, General Municipal Law, Article 18).

September 16, 1977