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Volume 6 - Opinions of Counsel SBEA No. 63

Opinions of Counsel index

Compatibility of office (village mayor - town assessor); Assessor (powers and duties) (hours of work) - Municipal Home Rule Law, § 10; Real Property Tax Law, § 1522; Town Law, § 27:

The offices of town assessor and mayor of a village within a town are not incompatible per se. The hours of work and salary of a town assessor are the responsibility of the town board.

Our opinion has been requested concerning a situation where the appointed assessor of a town has been elected mayor of a village within the town. The precise questions posed involve compatibility of office and the determination of work hours of an appointed assessor.

In 3 Op.Counsel SBEA No. 61, we stated that, absent a prohibition in either the town or village code of ethics, the offices of village mayor and town assessor are compatible except where the village adopts the town assessment roll. We did not intend to imply that these were the only circumstances which would render the offices incompatible.

The traditional analysis of compatibility of office is contained in the case of People ex rel. Ryan v. Green (58 N.Y. 295). The standard established there is whether the functions and duties of one office are subordinate to or interfere with the functions and duties of the other (see, 6 Op.Counsel SBEA No. 39).

There is no question here of the subordination of one of these offices to the other. Thus, if incompatibility is to be found, it must be found in terms of interference. It is clear that neither office has the right to interfere with the functioning of the other. Therefore, the two offices are not incompatible per se (O’Malley v. Macejka, 44 N.Y.2d 533, 378 N.E.2d 88, 406 N.Y.S.2d 725).

Although two offices are not incompatible in the abstract, the practical functioning of both might create situations where the possibility would exist that the purposes of each could be antithetical. This is the difference between offices which are incompatible per se and latently incompatible (see, 6 Op.Counsel SBEA No. 41). Latent incompatibility, the mere possibility that an individual may find the two offices he holds in conflict, is not a sufficient basis for considering the offices incompatible (O’Malley, supra).

It is clear that latent incompatibility exists between the offices of town assessor and mayor of a village within the town. The offices involve different responsibilities. The mayor is elected by the voters of the village to work for the best interests of the village. The assessor is appointed by the town board to prepare an equitable assessment roll for the entire town. One purpose of the Assessment Improvement Law, Article 15-A of the Real Property Tax Law, which in part created the office of appointed assessor, was to insulate the assessor from political pressures. When an appointed assessor runs for village mayor, he is defeating this legislative goal by subjecting himself to political pressure from the village.

Where such latent incompatibility exists, a municipality can prevent ultimate controversies through its local code of ethics which section 806 of the General Municipal Law mandates. That is, the town can avoid the possibility of conflict by prohibiting an elected village mayor from serving as town assessor. Likewise, the village could disqualify the town assessor from serving as village mayor.

The particular inquiry which prompted this opinion involved an additional factor which militates against this duality of office. The town in question was of a sufficient size to require, in the opinion of this agency, a full time assessor (see, 9 NYCRR Part 188, dealing with minimum qualifications for assessors). This would invoke the provisions of Village Law, section 3-300(4), which reads:

Except as is otherwise provided by law, no person shall be disqualified from holding a village office by reason of holding any public office unless such public officer could not fully discharge the duties and obligations of the village office while carrying out the duties and obligations of any such other office. (emphasis added)

It would seem that a full time assessor should be devoting his time to his duties as assessor. In a town of sufficient size this might not leave enough time to perform the functions of village mayor.

The question of time devoted to these two offices is complicated by the fact that the determination of hours of work and compensation for town assessors is left in the hands of the town board (Municipal Home Rule Law, § 10(1)(a)(l); Town Law, § 27). Thus, despite the fact that this agency may consider a town with a certain number of parcels sufficiently complex to require a full time assessor, the ultimate decision would still rest with the town board. Where, however, the town has decided to hire a full time assessor, the provisions of Village Law, section 3-300(4), would raise a possible bar to the assessor’s serving as village mayor.

If the latent incompatibility should develop into a situation where an individual fails to properly perform the functions of one of the offices, recourse may be had. Should the office of assessor be improperly performed, removal may be possible under section 1522(7) of the Real Property Tax Law. A village mayor is subject to removal under the various provisions of Article 3 of the Public Officers Law. The possibility of removal from either office serves as an assurance that latent incompatibility remains latent.

May 8, 1979