Opn. No. I 92-16
TOWN LAW §§170, 172-a(1), 172-d, 183, 184(1),
185.
One person may not hold simultaneously the positions of
member of a town board and fire district commissioner.
You have asked whether the positions of member of a town board and
fire district commissioner are compatible.
In the absence of a constitutional or statutory prohibition against
dual-officeholding, one person may hold two offices Simultaneously
unless they are incompatible. The leading case on compatibility of
office is People ex rel. Ryan v Green, 58 NY 295 (1874).
In that case the Court held that two offices are incompatible if
one is subordinate to the other or if there is an inherent inconsistency
between the two offices. The former can be characterized as "you
cannot be your own boss", a status normally easy to see. The
latter is not easily characterized, for one must analyze the duties
of the two offices to ascertain whether there is an mconsistency.
An obvious example is the inconsistency of holding both the office
of auditor and the office of director of finance.
There are two subsidiary aspects of compatibility. One is that,
although the common law rule of the Ryan case is limited
to public offices, the principle equally covers an office and a position
of employment or two positions of employment. The other is that,
although the positions are compatible, a situation may arise where
one has a conflict of interests created by the simultaneous holding
of the two positions. In such a situation, the conflict is avoided
by declining to participate in the disposition of the matter.
Under section 170 of the Town Law, the town board may decide to
extend the territory of a fire district. This determination is subject
to approval by a majority of the fire district commissioners. It
id. Also, the boards of fire commissioners of two or more adjoining
fire districts may decide to alter the boundaries of the districts.
Jd., §172-a(1). Such a proposed change must, however, be approved
by the town board or boards of the town or towns in which the districts
are located. Ibid. The town board is authorized to dissolve
all or part ofa fire protection district and add the territory served
by that district to an adjoining fire district. Town Law §172-d.
The fire district commissioners must, however, consent in writing
to such an addition. Ibid. Additionally, the town board
is authorized to contract with a fire district for the provision
offire protection within a fire alarm district. Id., §188.
Further, a town board may contract with a fire district for the provision
of fire protection and other services in a fire protection district. Id., §184(1).
Finally, upon the submission of a legally sufficient petition, a
town board, after a public hearing, may dissolve and discontinue
a fire district. Id., §185.
In our view, these provisions of law requiring approval of the actions
of one body by the other and authorizing contracts between the two
bodies render these positions incompatible. Thus, we conclude that
one person may not hold simultaneously
the positions of member of a town board and fire district commissioner.
The Attorney General renders formal opimons only to officers and
departments of State government. This perforce is an informal and
unofficial expression of the views of this office.
Opn. No. I 92-17
GENERAL MUNICIPAL LAW, ART 5-G, §§119-n(c), l19-o(1).
Two Villages may enter into a municipal cooperation agreement
whereby they assist one another in the provision of law enforcement.
You have asked whether two villages may enter into a mutual assistance
agreement for the provision of police protection.
Under Article 5-Gofthe General Municipal Law, municipal corporations
may agree by contract to perform servicesjoinMy
or that one municipality will perform services for another. General Municipal
Law §119-o(1). Each of the participants to
the agreement must have the authority independently to perform the particular
services. Id., §§119.n(c), 119-o(1). In that the two villages
have existing police forces, they may enter into a contract under the above
provisions to assist one another in law enforcement. Under Article 5-G, a municipal
cooperation agreement would extend appropriate territorial jurisdiction to
the police officers for purposes of undertaking responsibilities under the
agreement. See, Formal Opinion No. 91-Fl, which indicates the broad authority
provided by Article 5-G.
We conclude that two villages may enter into a municipal cooperation
agreement whereby they assist one another in the provision of law
enforcement.