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Volume 6 - Opinions of Counsel SBEA No. 41

Opinions of Counsel index

Compatibility of office (assessor - school board member) - Education Law, § 2(14); Real Property Tax Law, §§ 102(3), 1522:

The offices of assessor and school district board member are compatible. However, since the assessing function is to be removed from the political process as much as possible, it is not advisable for one person to hold both offices.

We have been asked whether it is a conflict of interest for a member of a board of assessors to also serve on the school board of a school district which includes the town in which he is assessor. A conflict of interest generally connotes one using public office for private gain. In this situation, the question really concerns the compatibility of the two offices.

The assessor is the officer charged by law with the duty of assessing real property for the purposes of taxation or special ad valorem levies for county, city, town, village, school district or special district purposes (Real Property Tax Law, §§ 102(3), 1522). Section 1302 of the Real Property Tax Law states that for the purpose of the levy and collection of school taxes, the latest final assessment roll of the city or town is to be used, and clearly, the school board is the governing body of the school district (Education Law, § 2(14); 5 Op.CounseI SBEA No. 32).

In determining whether the functions of the assessor are compatible with the responsibilities of a school board member, one should first look to a local code of ethics. Section 806 of Article 18 of the General Municipal Law mandates that towns and school districts (and other municipalities) adopt a code of ethics. Under section 808 of the same Article, provision is made for a county to establish a board of ethics which, in the absence of a municipality’s own board of ethics, can advise that municipality regarding its local code.

However, assuming no determination can be made regarding the compatibility of the two offices from an existing code, we believe that case law indicates that no incompatibility exists in the situation presented.

Past cases have required a “contrariety and antagonism” between the function of the two offices involved. The functions of one office must be subordinate to or inconsistent with the other, in the absence of statutory or constitutional prohibitions, in order for incompatibility to be found (People ex rel. Ryan v. Green, 58 N.Y. 295). Most recently, “[i]ncompatibility has been said to exist when there is a built-in right of the holder of one position to interfere with that of the other, as where the one is subordinate to, or subject to audit or review by, the second. Obviously, in such circumstances, were both posts held by the same person, the design that one act as a check on the other would be frustrated” (O’Malley v. Macejka, 44 N.Y.2d 530, 378 N.E.2d 88, 406 N.Y.S.2d 725). In the facts presented here, no such subordination or antagonism appears to exist between the two offices.

In 1949, the Attorney General opined that although “a town assessor . . . performs certain duties in behalf of a school district . . . I do not regard the offices of town assessor and member of a board of education incompatible and conclude that they may be held by the same person at the same time . . .”(1949, Op.Atty.Gen.26).

In a 1972 opinion wherein the Attorney General concluded that there was no patent conflict of interest in a real estate broker being appointed assessor (1972, Op.Atty.Gen. 135), he also stated, “[W]hile a latent conflict of interest may be present, unless and until a factual situation arises . . . [showing impropriety], it would be premature for me to presently hold that a conflict in these two occupations is so inherent as to preclude the holding of same by the same person at the same time” (id. at 136).

Similarly, in this case, a “latent incompatibility” exists. That is, assume a school district is comprised of portions of three towns and a school board member is assessor in one of the towns. If the assessor were to assess the portion of his town located in the school district in a prejudicial manner, applying the regular equalization rate (5 Op.Counsel SBEA No. 121) would cause a shift in the school tax burden to the property owners in the other towns. However, such action could nonetheless be remedied by someone (perhaps a taxpayer in one of the other towns) seeking a special equalization rate pursuant to section 1314(2) of the Real Property Tax Law. Nevertheless, as the Attorney General said, possible improper action by the assessor should not be assumed in determining the compatibility issue.

To summarize, in the absence of statutory, constitutional or codified ethical prohibitions, and in the absence of any inherently contrary functions of two offices, incompatibility of office will not be found. In the facts described, it does not appear that the office of assessor is incompatible with that of membership on a board of education.

However, despite the apparent compatibility of the two offices, we do not recommend that they be held by the same person. As we stated in 4 Op.Counsel SBEA No. 100, “[I]t should be recognized that one of the aims of section 1522 (and indeed of the entire Assessment Improvement Law, of which § 1522 was a part) was to take the assessor and the assessment process out of the political arena as much as possible. . . .” While schools elections are usually nonpartisan, they are nevertheless part of the local political process. Accordingly, while the offices are seemingly legally compatible, we do not recommend this dual office holding.

March 12, 1979