Can a NY village mayor also serve on the town's board of assessment review when the village uses the town's assessment roll?

Subject

Where a village uses the town's assessment roll and the town BAR hears grievances for both, village mayor and town BAR member are incompatible offices

Plain-English summary

A Moravia village mayor was considering simultaneous service on the town board of assessment review. The town assessment roll was used by the village (under Real Property Tax Law § 1402), and the town BAR heard real property assessment grievances on behalf of both the town and the village.

The town attorney asked whether the two positions were compatible. The AG said no.

The opinion applied the People ex rel. Ryan v Green incompatibility test: two offices are incompatible if one is subordinate to the other or if there is an inherent inconsistency between their duties. Recusal can address occasional conflicts, but not structural conflicts.

The town attorney had initially suggested that the conflict was about budget mathematics: when the mayor (as BAR member) reduced village taxpayer assessments, it would shortfall village revenue projections. The AG rejected that as the source of conflict. Village taxes are levied for the ensuing year after the completed and verified assessment roll is filed (Real Property Tax Law §§ 1408, 1420). The village board of trustees sets tax rates so that revenue projections are achieved given the actual assessed valuation. So a BAR reduction simply changes the tax rate calculation; it does not cause a revenue shortfall.

The actual source of conflict was different. The mayor as a BAR member would hear grievances from both village taxpayers and from town-outside-village taxpayers. The mayor's structural loyalty to village taxpayers (as the village's chief executive) would create a pull toward favoring village grievants on shared BAR votes, to the detriment of taxpayers residing outside the village.

If the mayor favored village taxpayers as BAR member, those taxpayers would pay lower town taxes than their outside-village neighbors who do not have a similarly situated advocate on the BAR. That is a fairness problem that goes to the BAR's mission.

The AG acknowledged that the mayor might perform her BAR duties fairly and impartially. But the appearance of impropriety would not be avoidable. Public confidence in tax administration requires that grievance-hearing bodies appear impartial. A mayor on a BAR that decides grievances for both town residents and her own village constituents cannot meet that standard.

The opinion is firmly within the same family as 95-51 (mayor and town supervisor incompatibility) and 96-2 (corporation counsel and school board incompatibility), all built on the structural-conflict-cannot-be-recused-away principle.

Currency note

This opinion was issued in 1996. 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 recusal a sufficient cure?

Because the conflict is structural. The BAR's job is to hear and decide grievances, which means the mayor would have to recuse from every grievance involving a village taxpayer (or every grievance involving an outside-village taxpayer, depending on which side of the fairness concern the recusal targets). The recusal would functionally eliminate her BAR role for the majority of cases. At that point, the position becomes ceremonial rather than substantive.

What if the village didn't use the town assessment roll?

Then the structural conflict would weaken or disappear. The AG's opinion specifically conditions the incompatibility on the village using the town's assessment roll and the town BAR hearing grievances for both. If the village had its own assessment roll and its own grievance process, the mayor's BAR duties would not affect village taxpayers, and the dual role might be compatible.

What about other officials with shared-roll arrangements?

The same analysis would apply to any village or town officer whose primary loyalty to one jurisdiction would compromise impartial BAR service for the other. A village trustee in the same situation would face the same incompatibility. A town board member sitting on a BAR that decides village grievances might face a parallel problem.

Are village boards of assessment review subject to similar concerns?

Yes, if the village has its own BAR and a town official wanted to sit on it, the same impartiality logic would apply in reverse. Real Property Tax Law sets up assessment review at the local level and presumes the review body operates independently from the tax-administering body's leadership.

How long has this dual-mayor problem been an issue?

The AG opinion does not say, but the Ryan v Green test dates to 1874 and has been applied to dual office holding consistently. The specific shared-roll problem is more recent and depends on the structure of town-village assessment relationships under modern Real Property Tax Law.

Statutory framework

Real Property Tax Law § 1402 authorizes use of the town assessment roll by villages within the town.

Real Property Tax Law §§ 1408 and 1420 govern the timing of village tax levies in relation to the completed assessment roll. § 1408 deals with the filing of the roll; § 1420 deals with the levy of taxes based on the assessed valuations.

People ex rel. Ryan v Green, 58 NY 295 (1874), states the common-law incompatibility test: two offices are incompatible if one is subordinate to the other or if there is an inherent inconsistency between their duties.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-7_pw.pdf

Original opinion text

REAL PROPERTY TAX LAW §§ 1402, 1408, 1420.

The positions of mayor of a village and member of the town board of assessment review are incompatible where the village uses the town assessment roll and the town board of assessment review hears grievances on behalf of the village and the town.

March 4, 1996

Richard J. Zwirn, Esq.
Town Attorney
Town of Moravia
P. O. Box 631
Moravia, NY 13118

Informal Opinion
No. 96-7

Dear Mr. Zwirn:

You have asked whether the positions of member of the town board of assessment review and mayor of a village within the town are compatible and, therefore, may be held simultaneously by the same person.

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.

You have informed us that the town assessment roll is used by the village and that the town board of assessment review determines real property assessment grievances on behalf of the town and the village. Real Property Tax Law § 1402.

You believe that there is a conflict between the duties of these two positions in that when the mayor as a member of the board of assessment review reduces assessments for village taxpayers a shortfall will occur in revenue projections under the village budget. We do not see this as a source of conflict in that taxes are not levied for the ensuing year until after the completed and verified assessment roll is filed with the village clerk, reflecting any reductions by the board of assessment review. Id., §§ 1408, 1420. The tax rates would then be set by the village board of trustees so that revenue projections in the budget are achieved taking into consideration the assessed valuation of village property.

We do, however, see a conflict of duties in the holding of these two positions. The mayor, as a member of the board of assessment review, would hear grievances by both village taxpayers and taxpayers who reside in the area of the town outside the village. We believe that this creates a conflict in that the mayor may favor village grievants to the detriment of taxpayers residing outside the village. The mayor's loyalties are divided between village taxpayers, whom he serves as the chief executive officer of the village, and his duty to review impartially all grievances as a member of the board of assessment review. The favoring of village taxpayers would result in the payment of lower town taxes by these individuals as compared to residents of the town outside the village. While the mayor may perform his or her duties on the board of assessment review in a fair and impartial manner, the appearance of impropriety in holding these two positions cannot, in our view, be avoided. In order to maintain public confidence in government, even the appearance that governmental functions are not being performed solely in the public interest must be avoided.

We conclude that the positions of mayor of a village and member of the town board of assessment review are incompatible where the village uses the town assessment roll and the town board of assessment review hears grievances on behalf of the village and the 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