Can a NY county legislator also hold a paid civil-service job in the county's social services department?

Subject

County legislator and social welfare examiner are incompatible

Plain-English summary

A member of the Columbia County Board of Supervisors (an elected legislator) had been hired as a social welfare examiner in the County Department of Social Services in March 1995. He determined financial eligibility for welfare programs under State regulations. He was supervised on a day-to-day basis by a senior social welfare examiner, who reported up to the director of income maintenance, who reported to the commissioner of social services. Social welfare examiners' terms and conditions of employment were covered by a collective bargaining agreement that ran beyond the legislator's term (which expired December 31, 1995). The legislator did not sit on the committee dealing with social services and had announced he would not seek re-election.

The county attorney asked whether the dual roles could continue through the end of his term.

The AG concluded no.

The AG cited a line of prior opinions (Op Atty Gen [Inf] No. 91-42; No. 87-25) holding that county legislative membership is incompatible with county employment. The reasoning: the county legislature fixes terms and conditions of employment, including compensation, for all employees paid from county funds. And in 87-25, the legislature was found to be the supervisor and director of all municipal employees, making one position subordinate to the other.

The facts here softened those concerns: the collective bargaining agreement was in place before the hiring and ran beyond the legislator's term, so the legislator did not have current authority to set his own salary terms. And the commissioner of social services, not the legislature, supervised the examiner day to day.

But the AG still found incompatibility because the county legislature controls the department's budget on an annual basis. The legislator would vote on the social services budget request submitted by his own supervisor (the commissioner). The legislator would be voting on resources for the department where he and his colleagues worked. That gives the public a reasonable perception of a conflict in determining department funding. And it gives the commissioner a reasonable concern about supervising impartially: how does the commissioner discipline or evaluate someone who votes on the commissioner's budget?

The AG was careful to note that the test is structural, not personal. As Dykeman v Symonds put it, the rule is not about whether a specific individual would in fact resist temptation; it is about the possibility of wrongdoing and the principle involved. Budget approval alone has been enough to disqualify in prior opinions (Op Atty Gen [Inf] No. 88-13).

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why isn't the collective bargaining agreement enough to fix the salary problem?

The CBA fixes the legislator's individual compensation for the term of the agreement. But the legislature still votes annually on the department's overall budget, which determines staffing levels, programmatic resources, and many indirect aspects of the legislator's work environment. The CBA does not cover all of those budget decisions.

Couldn't the legislator just recuse from social services budget votes?

That's a partial solution but the AG treated it as insufficient. The social services budget is part of the overall county budget, which the legislator must vote on as a whole. Recusing from the entire county budget would mean essentially recusing from the legislator's central job. The compatibility doctrine treats recurring conflicts of this magnitude as making the offices themselves incompatible.

What's the policy reason for the strict approach?

The AG framed it as the public-interest principle behind dual office holding rules: even appearance of conflict matters. The voting public is entitled to legislators who weigh budgets without personal stake. Letting a legislator hold a county job creates a doubt that erodes public confidence in the budget process, regardless of how scrupulous the individual is.

What if the legislator had been hired by a different county (or a city or town)?

The compatibility analysis here is specific to the same county. A Columbia County legislator working for, say, Greene County would not face the same dual-supervision and budget-approval problems. Inter-county or inter-government overlaps usually pass compatibility analysis.

Did the AG suggest a resolution short of resigning?

The AG did not lay out a remedy in detail. The standard options are: resign from the legislature, resign from the county job, or get a state-law amendment to permit the combination. Given the legislator's announcement that he would not seek re-election, the practical answer was usually to resign from the job until the term expired and resume employment afterward, or to resign from the seat early.

Background and case law

The Ryan v Green common-law test asks: subordination or inherent inconsistency? Both factors point against this combination.

On subordination: the legislature collectively supervises municipal employees, even if the immediate supervisor is the commissioner. That puts the examiner indirectly under the legislator's authority, but also puts the commissioner (the examiner's immediate supervisor) under the legislator's budget control. The flow runs in both directions.

On inherent inconsistency: budget approval is the structural conflict. The AG opinion makes clear that even a strong department-level supervision setup (commissioner runs the day-to-day) doesn't eliminate the legislative-budget-vote problem.

Matter of Dykeman v Symonds, 54 AD2d 159 (4th Dept 1976), articulates the underlying principle: compatibility is about possibility of wrongdoing, not actual wrongdoing. That's why this analysis applies regardless of the individual's personal integrity.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-35_pw.pdf

Original opinion text

A person may not serve simultaneously as a member of the
board of supervisors and as the social welfare examiner of
Columbia County.
July 3, 1995

William J. Better, Esq.
County Attorney
County of Columbia
401 State Street
Hudson, NY 12534

Informal Opinion
No. 95-35

Dear Mr. Better:
You have asked whether a person may serve simultaneously as
a member of the board of supervisors of Columbia County (the
legislative body) and as a social welfare examiner of the
Columbia County Department of Social Services.
You have indicated that there are 23 members of the board of
supervisors, including the individual in question who serves as
supervisor for a ward in the City of Hudson. He was elected to
that position in November 1993 for a two-year term, expiring on
December 31, 1995.
This individual was hired as social welfare examiner on
March 6, 1995 after a competitive civil service examination. The
social welfare examiner determines financial eligibility for
programs administered by the local social services department in
accordance with State regulations. You have informed us that the
social welfare examiner is supervised on a day-to-day basis by a
senior or principal social welfare examiner who in turn is
supervised by the director of income maintenance. The
commissioner of the department of social services has ultimate
responsibility for the operations of the county department of
social services. The commissioner is appointed for a specific
term in accordance with the Social Services Law.
Social welfare examiners fall within a collective bargaining
agreement which covers their terms and conditions of employment.
You have indicated that the subject individual does not sit
on the committee of the legislative body which deals with the
department of social services. He has announced his intention
not to seek reelection when his term expires on December 31,
1995.
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

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(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
readily identifiable. The latter is not easily characterized,
for one must analyze the duties of the two offices to ascertain
whether there is an inconsistency. 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.
In prior opinions of this office we have found that
membership on the county legislative body is incompatible with
positions of employment in the county. Op Atty Gen (Inf)
No. 91-42 and other opinions cited therein; Op Atty Gen (Inf)
No. 87-25. We emphasized the county legislative body's power to
fix the terms and conditions of employment, including
compensation, for all employees paid from county funds. Further,
in Op Atty Gen (Inf) No. 87-25 we also found one position is
subordinate to the other in that the county legislative body has
responsibility for the supervision and direction of the employees
of the municipality.
Under the facts you have related, the three-year collective
bargaining agreement was agreed to prior to the individual's
employment as the social welfare examiner and extends beyond the
completion of his term as a member of the board of supervisors.
Thus, terms and conditions of employment, including salary, are
fixed through the completion of his tenure as a legislator.
Further, you have indicated that the commissioner of social
services is directly responsible for running the department of
social services, including the discipline of employees.
In our view, despite the above factors, the two positions
are incompatible. The county legislature, on an annual basis,
controls the budget of the department of social services. Like
any other department head, the commissioner of social services
requests a departmental budget for each year. In our view, the
legislator in question has a conflict of interests in considering
the social services budget request. Certainly, there is at least
a perception that he would have a conflict of interests in
determining resources for the department where he and his agency
colleagues are employed and in reviewing a request made by the

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commissioner of social services, his supervisor on a
day-to-basis. Further, one reasonably might ask how the
commissioner of the department of social services can supervise
impartially a legislator upon whom he depends, as a member of the
board of supervisors, for budget approval and approval of basic
departmental policies.
We have found that where there is a substantial, inevitable
conflict in the duties of two positions, they are incompatible.
Op Atty Gen (Inf) No. 88-13. The fact that an individual may be
able to resist temptation to act in a manner incompatible with
the best interests of the county does not resolve the problem.
See, Matter of Dykeman v Symonds, 54 AD2d 159 (4th Dept 1976).
It is the possibility of wrongdoing and the principle involved
which bars the holding of incompatible offices. Ibid. In a
prior opinion, we have found a disqualifying conflict based only
on departmental budget approval. Op Atty Gen (Inf) No. 88-13.
We conclude that a person may not serve simultaneously as a
member of the board of supervisors and as the social welfare
examiner of Columbia County.
The Attorney General renders formal opinions only to
officers and departments of State government. This perforce is
an informal and unofficial expression of the views of this
office.
Very truly yours,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions