Can a New York town clerk who already collects state, county, and town taxes also be appointed school tax collector by the local school board?

Plain-English summary

The Willsboro Central School District (which spans the second-class Towns of Willsboro and Essex in Essex County) wanted to appoint the Willsboro town clerk as school tax collector. The town clerk already collected state, county, and town taxes because the Town of Willsboro had abolished its separate tax collector office under Town Law § 36(1). The town board did not object. The town attorney asked whether the clerk could hold both positions.

The AG framed the issue under common-law compatibility. Absent a constitutional or statutory bar, one person may hold two public offices at the same time unless they are incompatible. Two offices are incompatible if one is subordinate to the other, or if their duties are inherently inconsistent. The leading case is People ex rel. Ryan v Green, 58 NY 295, 304-305 (1874), which defined incompatibility as an inconsistency in the functions of the two offices.

Applied here, the AG saw no incompatibility. Neither the town clerk position nor the school tax collector position reports to the other; they sit on different governmental tracks (town and school district). Their duties point the same direction: both involve collecting assessed taxes on behalf of public bodies. There is no operational tension between them.

The opinion also flagged the school tax collector's status: a "school officer" under Education Law § 2(13) who must be a qualified voter of the school district under § 2102, and who serves at the pleasure of the board of education under § 2130(4). The Willsboro Central School District has the powers and limitations of a union free school district under § 1805. These attributes do not conflict with the town clerk's duties.

The opinion notes two layers worth flagging in any compatibility analysis: the common-law rule extends not just to two public offices but to an office plus a position of employment; and even where two positions are compatible in the abstract, a particular conflict of interest may arise that requires recusal in the disposition of a specific 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 does "incompatibility" mean in New York public-office law?

Per People ex rel. Ryan v Green, two offices are incompatible if one is subordinate to the other, or if their functions are inherently inconsistent (so that the holder of one office would have to discharge a duty against the holder of the other, or audit his own work, or similar). Incompatibility is judged by the structural relationship, not by case-by-case conflicts.

What is a second-class town and why does it matter?

Under Town Law § 10, a town of the second class has a population under 10,000; a town of the first class has 10,000 or more. The 1990 census put Willsboro at 1,736 and Essex at 676, both well under 10,000. In a second-class town that has abolished the tax-collector office, Town Law § 36(1) transfers the collection of state, county, and town taxes to the town clerk.

What is the difference between compatibility and conflict of interest?

Compatibility is a structural question: do the two offices, by their nature, get in each other's way? Conflict of interest is transactional: in a specific matter, does the official have a personal or competing interest that prevents impartial action? Two compatible offices can still generate conflicts in particular cases; the cure for that is recusal.

Does the town clerk's prior collection of town taxes change the analysis?

It actually strengthens it. The town clerk already exercises tax-collecting authority (state, county, town). Adding school tax collection extends the same function across another tax base, not a new and conflicting role. The AG cited that shared "common interest in the collection of assessed taxes" as confirming the compatibility.

Could a future conflict still arise?

In principle yes. If a particular tax assessment or collection question simultaneously affected the town and the school district in incompatible ways, the clerk would need to recuse from one side. The opinion does not address that hypothetical because no specific conflict was presented.

Background and statutory framework

The Willsboro Central School District has the powers and limitations of a union free school district under Education Law § 1805. The school board appoints a school district tax collector who serves at its pleasure under § 2130(4). That collector is a "school officer" under § 2(13) who must be a qualified voter of the district under § 2102.

For the town side, Town Law § 10 sets the population threshold separating first-class and second-class towns. § 36 governs the collection of state, county, and town taxes; subdivision 1 transfers that collection to the town clerk in a second-class town that has abolished the tax-collector office.

The common-law rule on compatibility, articulated in People ex rel. Ryan v Green, 58 NY 295 (1874), supplies the test the AG applies.

Citations

• People ex rel. Ryan v Green, 58 NY 295, 304-305 (1874) (compatibility doctrine for public offices).
• Education Law § 2(13) (school officer definition).
• Education Law § 1805 (Willsboro Central School District powers same as union free school district).
• Education Law § 2102 (school district tax collector must be qualified voter).
• Education Law § 2130(4) (school board appoints tax collector who serves at pleasure of board).
• Town Law § 10 (first-class versus second-class towns).
• Town Law § 36 (collection of taxes in second-class towns).
• Op Atty Gen (Inf) Nos. 97-22, 97-9 (related compatibility opinions).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-36_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Page 1 of 2

Opn. No. 97-36
EDUCATION LAW §§ 2(13), 1805, 2102, 2130(4); TOWN LAW §§ 10, 36.
A town clerk may be appointed tax collector for the school district.
August 4, 1997
Informal Opinion
David D. Scaglione, Esq.
Town Attorney
Town of Willsboro
Town Hall
Willsboro, New York 12996
Dear Mr. Scaglione:
You have requested an opinion as to whether the Willsboro town clerk may be appointed school tax
collector by the board of education for the Willsboro Central School District, comprised of the Towns of
Willsboro and Essex. You have advised us that the Town of Willsboro does not have an office of tax
collector or receiver of taxes. The town clerk, elected to a two year term, is responsible for the collection
of annual State, county and town taxes. In addition to performing these responsibilities, the town clerk
would like to be considered for appointment as school tax collector. You indicate that the town board
does not object to appointment of the clerk to serve as school tax collector.
The Towns of Willsboro and Essex are located in Essex County, and both are towns of the second class.
1 Under the provisions of Town Law § 36(1), where a town of the second class has abolished the office
of tax collector or receiver of taxes, the collection of State, county, and town taxes and assessments is
transferred to the town clerk.
The Willsboro Central School District has the same powers and limitations as union free school districts.
Education Law § 1805. It is within the power of the board of education to appoint a school district tax
collector who will serve at the pleasure of the board. Education Law § 2130(4). The school district tax
collector is a "school officer" and is required to be a qualified voter of the school district. Education Law
§§ 2(13), 2102.
As discussed in a telephone conversation, the crux of your inquiry is whether the position of town clerk
is compatible with the position of school tax collector. Absent a constitutional or statutory prohibition
against dual office-holding, one person may hold two offices simultaneously unless the offices are
incompatible. In People ex rel. Ryan v Green , 58 NY 295, 304-305 (1874), the Court of Appeals stated,
in relevant part:
Incompatibility between two offices, is an inconsistency in the functions of the two; as
judge and clerk of the same court - officer who presents his personal account subject to
audit, and officer whose duty it is to audit it. . . . Where one office is not subordinate to the
other, nor the relations of the one to the other such as are inconsistent and repugnant, there
is not that incompatibility from which the law declares that the acceptance of the one is the
vacation of the other. . . . The offices must subordinate, one the other, and they must, perse ,
have the right to interfere, one with the other, before they are incompatible at common law.

http://www.oag.state.ny.us/lawyers/opinions/1997/informal/97_36.html

4/20/2006

OPINIONS OF THE ATTORNEY GENERAL

Page 2 of 2

Thus, two offices are incompatible if there is an inconsistency between the two, which can be revealed
upon an analysis of the duties entailed, or where one office is subordinate to the other.
It should be noted that there are two related aspects of compatibility. Op Atty Gen (Inf) Nos. 97-22, 979. First, although the common law rule is limited to public offices, the principle can be applied to cover
an office and a position of employment. Second, although the positions are compatible, a situation may
arise where one has a conflict of interests created by a simultaneous holding of two positions. In such a
situation, the conflict is avoided by declining to participate in the disposition of the matter. If such a
conflict is inevitable and substantial, there may be an inherent inconsistency in the positions.
We see no basis for incompatibility between the position of town clerk and school tax collector. Neither
position is subordinate to the other. Nor is there a conflict between the duties of the two positions. Both
the town clerk, as State, county and town tax collector, and the school tax collector have a common
interest in the collection of assessed taxes.
Therefore, we conclude that the town clerk may be appointed tax collector for the school district.
The Attorney General renders formal opinions only to officers and department of the State government.
This perforce is an informal and unofficial expression of the views of this office.
Very truly yours,
JULIA RYAN CHRIST
Assistant Attorney General

1 Under Town Law § 10, a town of the second class has a population of less than ten thousand whereas
a town of the first class has a population of ten thousand or more. The Association of Towns has
advised that the decennial Federal census, taken in 1990, indicated that the Town of Willsboro had a
population of 1,736 and the Town of Essex had a population of 676.

http://www.oag.state.ny.us/lawyers/opinions/1997/informal/97_36.html

4/20/2006