Can the mayor of a New York city serve at the same time as a member of the county legislature?

Plain-English summary

The Mayor of the City of Salamanca was elected in 1997 and took office in January 1998. Later that year he was appointed to fill a vacancy in the Cattaraugus County Legislature, representing a district that included the City of Salamanca and two towns. The Cattaraugus County Attorney asked the AG three questions: are the two offices compatible, when does recusal apply, and can the Mayor stand for both on the same ballot.

The AG concluded that the two offices are compatible. The analysis runs in two layers.

The first layer is statutory. County Law § 411 lists the elective county offices that cannot also be held with another elective county or town office or a city supervisor position: county judge, family court judge, surrogate, district attorney, sheriff, county clerk, and any elective county officer. The statute does not bar a county legislator from holding the office of city mayor. The AG noted that § 411 references "city supervisor," but treated that as a different office (a city representative sitting on a board of supervisors), not equivalent to mayor. The State Legislature, in other words, considered the universe of dual-office issues and did not prohibit this combination.

The second layer is incompatibility at common law. The AG asked whether one position is subordinate to the other, or whether the two roles produce an inevitable, substantial conflict of duties. Neither was true here. County legislators are selected by district and represent both their constituents and the county; a county legislator from a city district will routinely vote on matters affecting that city without that being a conflict.

Isolated conflicts of interests will come up. The County Attorney's example was litigation between the County and the City of Salamanca, which would clearly require recusal. But the prospect of occasional recusable conflicts does not make two offices incompatible. The AG also flagged General Municipal Law § 808 boards of ethics as the right forum for the close calls.

Because the two offices are compatible, the AG also concluded that the same individual could appear on the ballot for both at the same election.

The opinion includes a footnote pointing out that § 411 looks arbitrary in treating town and city offices differently, but that county charters under County Law § 2(b) and local laws under Municipal Home Rule Law § 10 can override § 411 in particular counties.

Currency note

This opinion was issued in 1998. 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

When does a city mayor sitting as a county legislator have to recuse?

When the county-legislature matter is the city itself in a posture adverse to the county. The clearest case is litigation between the city and the county. Routine county-legislature votes that benefit (or burden) the city the mayor represents are not, by themselves, conflicts requiring recusal; that is the structure of district-based representation.

Can the same person run for both offices on the same ballot?

Yes. The AG said directly that, because there is no prohibition on holding both, the individual may be on the ballot for both at the same election.

Does this analysis change if the county uses a charter?

It can. County Law § 2(b) lets county charters override § 411, and Municipal Home Rule Law § 10 lets local laws supersede some general state-law provisions. The opinion did not analyze the Cattaraugus charter specifically; the conclusion assumed § 411 controlled.

What about combining city mayor with town offices?

Not addressed by this opinion. The question presented was about city mayor and county legislator only. The footnote, which observes that § 411 distinguishes arbitrarily between town and city offices, hints that the AG saw oddities in the statute's structure but did not undertake a broader reweighting.

Does ethics board advice replace AG opinions on these questions?

For local officials, a local board of ethics under General Municipal Law § 808 is the first stop for advisory opinions on conflict questions. The AG opinion is persuasive authority and useful for harder or more general structural questions; the ethics board is closer to the facts and better suited to ongoing oversight.

Background and statutory framework

County Law § 411 is the central dual-office-holding statute for elective county offices. Its list of incompatible combinations grew over time; the 1998 version barred any elective county officer from also holding any other elective county or town office or that of city supervisor. The omission of city mayor from the list is the move that does most of the work in this opinion.

The AG's common-law incompatibility doctrine asks whether positions are inherently in conflict. Two seminal questions: is one subordinate to the other, and would faithful discharge of one require breaching the other. If neither is true, the offices are compatible and the holder is expected to use recusal to handle the inevitable case-by-case conflicts.

General Municipal Law § 808 authorizes counties, cities, towns, and villages to establish boards of ethics that issue advisory opinions to officers and employees. The AG routinely points local officials there when the conflict question is fact-specific rather than structural.

County Law § 2(b) and Municipal Home Rule Law § 10 are the two override channels: the first lets a county charter set its own structural rules, the second lets local laws supersede some general state-law provisions. The footnote in this opinion is a reminder that the county-level structure can vary.

Citations

• County Law § 411 (dual-office-holding prohibitions for elective county officers).
• County Law § 2(b) (county charter override authority).
• Municipal Home Rule Law § 10 (local-law supersession of state law).
• General Municipal Law § 808 (boards of ethics).
• 1977 Op Atty Gen (Inf) 297 (common-law incompatibility analysis).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-38_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Page 1 of 2

Opn. No. 98-38
COUNTY LAW § 411; GENERAL MUNICIPAL LAW § 808.
The positions of county legislator and mayor of a city are compatible.
September 3, 1998
Dennis V. Tobolski, Esq.
County Attorney
County of Cattaraugus
303 Court Street
Little Valley, NY 14755
Dear Mr. Tobolski:
You have asked whether the mayor of a city can also serve as a member of the county legislature. If the
two offices are compatible, you inquire whether recusal is necessary under various circumstances.
Finally, you ask whether the individual can be on the ballot for both offices at the same election.
The Mayor of the City of Salamanca was elected to office at the 1997 general election and assumed
office on January 1, 1998. Recently, the Mayor was appointed to fill a vacancy in the position of
Cattaraugus County Legislator, representing a district that includes the City of Salamanca and two
towns.
Section 411 of the County Law provides that:
No county judge, family court judge, surrogate, district attorney, sheriff, county clerk or any elective
county officer shall be eligible to hold at the same time any other elective county or town office, or that
of city supervisor.
Thus, the State Legislature has considered dual officeholding by elective county officers and has not
prohibited holding of an elective county office and the position of mayor of a city. The office of city
supervisor, included in section 411, is a reference to a representative from the city sitting on a board of
supervisors of the county. It is an office separate and distinct from the office of mayor.(1)
The question remains whether there are conflicts between these offices that disqualify a person from
holding both. We see no incompatibility between the office of county legislator and the office of mayor
of a city. One position is not subordinate to the other and we see no inevitable and substantial conflict of
duties. See, 1977 Op Atty Gen (Inf) 297. It is conceivable, however, that conflicts of interests will occur.
The remedy is recusal to avoid the conflict. In your letter, you have given one example of a conflict of
interests requiring recusal - litigation between the County and the City of Salamanca. However, where
proposals before the County Legislature would benefit the City of Salamanca, generally we see no
inevitable conflict of interests. Legislators are selected from districts and are expected to represent their
constituents and the residents of the County.
Public officials should avoid even the appearance of impropriety in order to maintain public confidence
in government. If the officer is uncertain whether to take part in a particular action, he should recuse
himself or request an opinion from the local board of ethics. See, General Municipal Law § 808.

http://www.oag.state.ny.us/lawyers/opinions/1998/informal/98_38.html

4/20/2006

OPINIONS OF THE ATTORNEY GENERAL

Page 2 of 2

In that there is no prohibition on holding both offices, the individual may be on the ballot for the
positions at the same election.
We conclude that the positions of county legislator and mayor of a city are compatible.
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

1. We note that section 411 appears to distinguish arbitrarily a town office from a city office or a village
   office. However, county charters may have contrary provisions (County Law § 2[b]) and section 411
   may be overcome by local law (Municipal Home Rule Law § 10).

http://www.oag.state.ny.us/lawyers/opinions/1998/informal/98_38.html

4/20/2006