Can a county building code enforcement officer also serve as a county fire investigator who investigates the cause of fires in buildings he previously permitted?

Plain-English summary

Seneca County had its Building Code Enforcement Officers doubling up as members of the County Fire Investigation Team. The County Attorney saw that "it is entirely possible" that as fire investigators they would investigate the origin of a fire in a building that they themselves had permitted or inspected on the building-code side. He asked the AG whether the two roles created a conflict.

The AG concluded the positions are incompatible. The opinion walked through the standard incompatibility-of-offices framework. Under People ex rel. Ryan v Green, 58 NY 295 (1874), two offices are incompatible if one is subordinate to the other or if there is an inherent inconsistency between the two. The framework also applies to combinations of office and employment, and the test is the same whether the conflict is structural or duty-based.

Here, the conflict is duty-based and direct. A fire investigator examines whether the cause of a fire was a fire-and-building-code violation. If the same person is also the building inspector who issued the permit allowing occupancy, the investigator is reviewing his own earlier work. Even an entirely honest finding that code violations did not cause the fire would be suspect in public eyes. The AG had previously held positions incompatible when the holder of one is empowered to review decisions made by the holder of the other, citing Op Atty Gen (Inf) No. 93-3.

The opinion also addressed the workaround of routing the fire investigation to a colleague instead. The AG rejected that. The collegial relationship between the building inspector and the colleague-investigator creates an appearance of partiality, even when each acts independently. The principle that even the appearance of impropriety must be avoided to maintain public confidence in government controls.

The AG distinguished an incompatibility holding from a recusal solution. For compatible positions, recusal on the specific conflict is enough; for incompatible positions, the person cannot hold both at the same time and recusal does not cure the structural problem.

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

What is the test for compatibility of public offices in New York?

People ex rel. Ryan v Green, 58 NY 295 (1874), set the test: two offices are incompatible if one is subordinate to the other (the "you cannot be your own boss" rule) or if there is an inherent inconsistency between the duties of the two offices. Both prongs apply to office-and-employment combinations as well.

Why didn't recusal solve this?

Recusal works for occasional conflicts between compatible offices. When the conflict is structural and ongoing (every fire investigation by this person could touch a building he permitted), the appearance-of-impropriety problem is permanent. The AG drew the line: at some point, the conflict is no longer a series of isolated recusable matters but the very nature of the second role.

Could a county clean this up by having two different county departments handle the two functions?

Even that wouldn't have solved Seneca's particular setup, because the same individuals served in both. The fix is staffing: people who do building-code enforcement should not also do fire investigation, and vice versa, in the same county. Whether the two functions sit in one department or two is a county-organization question that the opinion does not analyze.

What about a part-time or volunteer fire investigator?

The opinion doesn't separately analyze that. The duty-inconsistency the AG identified is in the job itself; whether the role is paid or volunteer is largely beside the point. A volunteer fire investigator reviewing his own permitted buildings has the same appearance problem.

Does this opinion bind county governments?

AG informal opinions are persuasive authority, not binding precedent. But this particular reasoning, that the fire investigator role reviews building-code work, applies straightforwardly wherever both functions exist. A county that ignored it would face the same conflict the opinion identified.

Background and statutory framework

New York's compatibility-of-offices doctrine sits at the intersection of common law (People ex rel. Ryan v Green) and AG informal opinions. The AG's role is advisory; courts decide actual conflicts cases when they reach the question. The 1998 opinions in this area applied a consistent two-step test. First, the formal Ryan inquiry into subordination and inherent inconsistency. Second, the appearance-of-impropriety inquiry. Either test, if it cuts against compatibility, results in an incompatibility finding.

The AG also drew the distinction between compatibility (which permits dual office holding subject to case-by-case recusal) and incompatibility (which does not). Sectors with high public-trust stakes (law enforcement, fire safety, financial oversight) are where incompatibility findings tend to come up because review structures are inherent to the work.

Citations

• People ex rel. Ryan v Green, 58 NY 295 (1874) (leading case on compatibility of office).
• Op Atty Gen (Inf) No. 93-3 (incompatibility where one position reviews decisions of another).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-44_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Page 1 of 2

Opn. 98-44
A county fire investigator should not also serve as a building inspector in the county.
November 2, 1998
Richard E. Swinehart, Esq.
County Attorney
County of Seneca
P. O. Box 299
Seneca Falls, NY 13148-0299

Informal Opinion
No. 98-44

Dear Mr. Swinehart:
You have asked whether a conflict of interests results when the County's Building Code
Enforcement Officers also serve as members of the County's Fire Investigation Team. You have stated
that it is "entirely possible" that as Fire Investigators these individuals would investigate the origin of a
fire in a building that previously has either been inspected and/or permitted by them in their capacity as
Building Code Enforcement Inspectors.
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.
In our view, a person should not simultaneously hold both the position of County Building Code
Enforcement Inspector and County Fire Investigator. They are incompatible because there is a conflict
of duties between the two positions. In prior opinions of this office, we have found that positions are
incompatible where the holder of one is empowered to review decisions made by the holder of the other
position. OpAttyGen (Inf) No. 93-3. A fire inspector in investigating a fire will examine whether the
cause was a violation of the fire and building code. If the fire inspector, when acting as building
inspector, issued a permit allowing occupancy of the building, there could be a reluctance to make the
appropriate finding. A finding, even if proper, that causation is unknown or unrelated to any code
violation, reasonably could be suspect in the view of the general public because of the conflict of duties.
An appearance of impropriety reasonably could occur even if a colleague performs the fire investigation
on the building. The collegial relationship could call into question the accuracy of any report and create
an appearance of partiality. Even the appearance of impropriety should be avoided in order to maintain
public confidence in government.
We conclude that a county fire investigator should not also serve as a building inspector in the

http://www.oag.state.ny.us/lawyers/opinions/1998/informal/98_44.html

4/20/2006

OPINIONS OF THE ATTORNEY GENERAL

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county.
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
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4/20/2006