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Volume 6 - Opinions of Counsel SBEA No. 55

Opinions of Counsel index

Compatibility of office (town assessor - tax collector) - Real Property Tax Law, § 1522; Town Law, § 35:

The offices of appointed town assessor and tax collector are compatible.

We have received an inquiry regarding the compatibility of the offices of town assessor and tax collector.

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 119). 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).

Section 1522 of the Real Property Tax Law describes the office of the 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.

In addition, subdivisions 2 and 3 of section 102 of this law define assessment and assessor respectively. Pursuant to these sections, an assessor has the duty of determining the value of real property and its taxable status.

The powers and duties of the tax collector are described in section 35 of the Town Law. The Real Property Tax Law (§ 102 (5)) defines collecting officer, in part, as one who is authorized to collect and receive taxes. These duties are set forth in detail in Article 9 of the Real Property Tax Law.

The assessor is charged with making an assessment but may exercise his discretion as to how it is to be done; the tax collector is not given such latitude since his duties are explicitly set forth. Thus, the duties of the tax collector are ministerial in contrast to those of the assessor which involve a great degree of judgment and discretion. In addition, the functions of one office will not interfere with those of the other since the functions of the two offices are not performed concurrently. In regard to a particular assessment roll, the duties of the assessor have been completed and his jurisdiction regarding the roll has ended before the warrant is attached. Only after the warrant is attached does the assessment roll become the tax roll regarding which the collecting officer performs his duties.

Accordingly, it is our opinion that the offices of town assessor and tax collector are compatible.

April 24, 1979