Can the same person work as a part-time deputy town clerk and serve as a town assessor in New York, or are those jobs legally incompatible?

Plain-English summary

The Town of Westerlo had an assessor seat open after one of its three elected assessors resigned. The town board considered appointing the deputy town clerk/receiver of taxes, who serves part time, to fill the assessor vacancy. The town attorney asked whether that combination is allowed under New York law.

The AG worked through the standard New York dual-office analysis. Town Law § 20(4) prohibits one person from holding more than one elective town office, but the deputy town clerk/receiver of taxes is appointed by the town clerk, not elected. The blanket bar does not apply. From there, the question is the common-law compatibility test from People ex rel. Ryan v Green (1874): two offices or positions are incompatible if one is subordinate to the other, or if there is an inherent inconsistency between the two.

Neither problem appears here. The deputy clerk's duties are determined by the town clerk under Town Law § 30(10) and generally cover maintaining town books and records, recording meetings, certifying appointments, and issuing licenses and permits, ministerial work that mostly precedes or follows the assessor's role. The assessor's work involves discretionary valuation judgments tied to a specific assessment roll. The duties do not intersect or contradict.

The AG noted earlier guidance from the counsel to the former State Board of Equalization and Assessment (now ORPS) that appointed assessor and tax collector positions are compatible because the tax collector's work is ministerial and follows the assessor's work in time: by the time the warrant attaches the assessment roll, the assessor's jurisdiction over that roll is gone. The same reasoning applies to the deputy clerk/receiver of taxes role. In a final caution, the AG observed that even when offices are compatible, particular conflicts of interest can arise out of specific matters; those should be handled by declining to participate in the particular matter.

Currency note

This opinion was issued in 1997. 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

What is the New York "compatibility of office" test?

It comes from People ex rel. Ryan v Green, 58 NY 295 (1874). Two offices or positions are incompatible if one is subordinate to the other ("you cannot be your own boss") or if there is an inherent inconsistency between their duties (the classic example is auditor and director of finance, where the same person cannot meaningfully audit their own work). The test applies equally to offices, positions of employment, and combinations of the two.

What if the same individual's specific transactions create a conflict?

The AG flagged this as a separate problem. Two compatible offices can still produce case-by-case conflicts: for example, a transaction the deputy clerk processes in their clerk role that they would later assess. The standard fix is recusal from the specific matter, not abandonment of either office.

Why does Town Law § 20(4) bar holding two elective offices but not affect this case?

Section 20(4) reflects a New York policy against concentration of elective authority. The same person elected by the same constituency to two distinct elective roles raises both accountability and workload concerns. An appointive position outside that policy, like a deputy clerk role, is governed by the common-law compatibility test rather than the statutory bar.

Does it matter that the assessor here was originally elected?

The AG treats it as a vacancy filled by appointment under the appointment rule applicable to that office. Because the deputy clerk is appointive, the § 20(4) bar against holding two elective offices does not come up. Both positions held by this individual would be appointive at the moment in question.

Could the same logic let a town clerk (not deputy) hold the assessor seat?

The opinion is limited to the deputy clerk/receiver of taxes situation. A duly elected town clerk holding an assessor seat would have to be analyzed under § 20(4) (one elective office only) or, if the assessor seat is being filled by appointment, under the same compatibility test the AG applied here. The town attorney should run the specific facts through that analysis.

Background and statutory framework

Town Law § 20(4) provides that no one may hold more than one elective town office.

Town Law § 30 sets out the duties of the town clerk: maintaining books and records, making records of meetings and resolutions, certifying appointments, and issuing licenses and permits. Section 30(10) provides that the particular duties of each deputy are determined by the town clerk.

People ex rel. Ryan v Green, 58 NY 295 (1874), is the leading New York case on compatibility of offices. 6 Op Counsel SBEA No. 55 (the former State Board of Equalization and Assessment's counsel, now ORPS) held that the appointed offices of town assessor and tax collector are compatible because the duties of the two offices do not intersect in their handling of any given assessment roll.

Citations

• Town Law § 20(4) (one elective town office maximum).
• Town Law § 30 (duties of town clerk); § 30(10) (deputy clerk's duties set by town clerk).
• People ex rel. Ryan v Green, 58 NY 295 (1874) (compatibility-of-office test).
• 6 Op Counsel SBEA No. 55 (appointed assessor and tax collector positions compatible).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-9_pw.pdf

Original opinion text

TOWN LAW § 20(4).
One person may simultaneously hold the positions of deputy
town clerk/receiver of taxes and assessor.

March 3, 1997
L. Michael Mackey, Esq.
Town Attorney
Town of Westerlo
Box 148
Westerlo, NY 12193

Informal Opinion
No. 97-9

Dear Mr. Mackey:
You have asked whether the deputy town clerk/receiver of
taxes, who was appointed by the town clerk and serves part time,
may be appointed to fill a vacancy created when one of the town's
three elected assessors resigned.
Town Law § 20(4) provides that no one may hold more than one
elective town office. Thus, one person could not serve as
elected assessor and town clerk/receiver of taxes. As you point
out, the deputy is appointed by the clerk and does not hold an
elective office. We are aware of no statutory provision that
bars a person from serving simultaneously as a part time deputy
to the town clerk/receiver of taxes and as an assessor.
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 the principle equally covers an office and a position of
employment or two positions of employment. Also, where positions
are compatible, a conflict of interests may arise out of the
simultaneous holding of the positions. The conflict can be
avoided by declining to participate in the disposition of the
particular matter.
Counsel to the former State Board of Equalization and

Assessment (now office of Real Property Services) has concluded
that the offices of appointed town assessor and tax collector are
compatible. 6 Op Counsel SBEA No. 55. In that opinion, counsel
noted that the duties of the tax collector are ministerial in
contrast to those of the assessor which involve a great deal of
discretion. Counsel also noted that the functions of one office
will not interfere with the other.
In regard to a particular assessment roll,
the duties of the assessor have been
completed and his jurisdiction regarding the
roll has ended before the warrant is
attached. Only after the warrant is attached
does the assessment roll become the tax roll
regarding which the collecting officer
performs his duties.
In our view, the same rationale applies here. There appears
to be no overlap of duties between the assessor and the deputy
town clerk/receiver of taxes. Moreover, there appears to be no
inconsistency between the duties of the two. The particular
duties of each deputy are to be determined by the town clerk.
Town Law § 30(10). The clerk's duties include maintaining the
books and records of the town, making records of meetings and
resolutions, certifying appointments and issuing licenses and
permits. Id., § 30. Assisting in these duties or carrying them
out in the absence of the town clerk would not overlap or
conflict with the duties of the assessor. Accordingly, we
conclude that the offices are compatible and may be held by one
person.
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,

SIOBHAN S. CRARY
Assistant Attorney General