Can the same person serve as both town supervisor and the mayor of a village inside that town?

Subject

A village mayor and the supervisor of the surrounding town hold incompatible offices

Plain-English summary

The Village of Naples sits within a town. The village attorney asked whether the same person could simultaneously serve as town supervisor and as village mayor. The AG said no.

The common-law rule on dual office-holding comes from People ex rel. Ryan v Green, 58 NY 295 (1874). Two offices are incompatible if one is subordinate to the other ("you cannot be your own boss") or if there is an inherent inconsistency between them. The inconsistency test requires analyzing the duties of both offices to see whether they conflict. The classic example is auditor and director of finance: an auditor cannot independently audit financial decisions she herself made as director.

Here the analysis turned on the highway-tax balancing duty in Highway Law § 277. The mayor is a member of the village board of trustees (Village Law § 4-400(1)(a)). The supervisor is a member of the town board (Town Law § 60). The town board, in preparing the town budget, must annually decide whether real property in the village will be exempted from taxes for certain highway purposes (Highway Law § 141(3), (4); § 277). That decision balances village interests against the rest of the town.

If one person sits as both supervisor and village mayor, that person is on both sides of the balancing decision every year. The same person who advocates for the village as mayor would sit on the town board deciding whether to give the village a tax exemption. The AG's prior opinions (1988 Op Atty Gen (Inf) 52; 1980 Op Atty Gen (Inf) 119, 158) had already found town-board membership and village-board-of-trustees membership incompatible for this reason. The supervisor/mayor combination falls within that earlier holding because supervisors are town board members and mayors are board-of-trustees members.

The conflict, the AG noted, happens only once a year, but it is "inevitable and substantial." The town budgetary process is significant; the impact of the town board's decision on village and town taxes can be substantial. That recurring, structural conflict cannot be addressed by ad hoc recusal because it goes to the central budgetary function of the town board.

The AG noted two subsidiary points about office compatibility. First, although the Ryan rule was originally about public offices, the same principle covers an office combined with a position of employment, or two employment positions. Second, even when two offices are compatible, a conflict of interest may arise in a particular case; the standard cure is to decline to participate in disposition of that matter. The supervisor/mayor combination does not fit the cure because the conflict is structural, not occasional.

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 doesn't recusal solve the problem?

Because the conflict is structural, not incidental. The annual town-board decision under Highway Law § 277 is a core budgetary function. If the supervisor recused every year on that decision, the town would either lose a board member's vote on a major budget item or the board would need to convene without the supervisor. Recusal works when conflicts are occasional. A built-in, recurring conflict is incompatibility.

Could the person serve in succession rather than simultaneously?

Yes. The incompatibility doctrine is about simultaneous holding. Someone could serve as mayor, then run for supervisor and serve in that role next, or vice versa. The bar is on holding both at once.

What if the village is in a different town?

The opinion focuses on a village within the supervisor's town. The Highway Law § 277 balancing affects only the relationship between a town and the villages within it. If the village were in a different town, the structural conflict the AG identified would not arise. But other compatibility questions might.

What about town-board-member-plus-village-trustee combinations?

The AG's earlier opinions (1988 Op Atty Gen (Inf) 52; 1980 Op Atty Gen (Inf) 119, 158) already found those combinations incompatible for the same § 277 reason. The supervisor/mayor combination here is the most prominent variant.

Does this analysis apply to deputies (deputy mayor, deputy supervisor)?

The opinion does not say. Deputy positions sometimes inherit incompatibilities from the primary office (especially if they vote in the principal's absence). A careful analysis of the specific deputy's duties and voting authority would be needed.

Statutory framework

People ex rel. Ryan v Green, 58 NY 295 (1874), is the leading case on dual-office-holding. Two offices are incompatible if one is subordinate to the other or if there is an inherent inconsistency in their duties.

Town Law § 60 makes the supervisor a member of the town board, the legislative body of the town.

Village Law § 4-400(1)(a) makes the mayor a member of the village board of trustees, the legislative body of the village.

Highway Law § 277, read with Highway Law § 141(3) and (4), requires the town board annually to determine whether village property is exempt from town highway taxes. That balancing creates the structural conflict.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-51_pw.pdf

Original opinion text

HIGHWAY LAW §§ 141, 277; TOWN LAW § 60; VILLAGE LAW § 4-400(1)(a).

A person may not hold simultaneously the positions of mayor of a village and supervisor of a town.

October 25, 1995

David P. Miller, Esq.
Village Attorney
Village of Naples
P. O. Box 356
Naples, NY 14512

Informal Opinion
No. 95-51

Dear Mr. Miller:

You have asked whether a person may hold simultaneously the offices of town supervisor and mayor of a village located within the town.

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 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.

The mayor of a village is a member of the village board of trustees, the legislative body of the village. Village Law § 4-400(1)(a). Similarly, the supervisor of a town is a member of the town board, the legislative body of town government. Town Law § 60. In prior opinions of this office, we have found that the positions of member of a town board and member of a village board of trustees are incompatible.

This finding is based on the fact that under section 277 of the Highway Law, in the preparation of the town budget the town board must annually determine whether real property in the village will be exempted from taxes for certain highway purposes. See, Highway Law § 141(3), (4). While this balancing of interests of the village and the town will occur only once a year, it is inevitable and substantial. The town budgetary process consumes considerable time and the impact of the town board's decision upon the taxes of the village and the town can be substantial. 1988 Op Atty Gen (Inf) 52; 1980 Op Atty Gen (Inf) 119, 158.

We conclude that a person may not hold simultaneously the positions of mayor of a village and supervisor of a town.

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