Can a New York district attorney also sit on a BOCES board or a local school board?

Plain-English summary

Counsel to a BOCES asked the AG whether an elected part-time district attorney could simultaneously serve as a member of the BOCES board and as a member of the board of education of a component school district, all within the geographic boundaries of the DA's jurisdiction.

The AG started from the common-law dual-office rule articulated in People ex rel. Ryan v. Green (1874): two offices are incompatible if one is subordinate to the other or if their duties are inherently inconsistent. No statute formally barred the combination, but the AG concluded that the duties of district attorney could not coexist with policymaking authority over public bodies the DA could be expected to investigate or prosecute.

Three features drove the analysis. First, under County Law § 700(1), the DA had exclusive responsibility to prosecute all crimes and offenses in the county, with broad discretion (People v. Bar-Noy) including the discretion to decline prosecution (People v. DiFalco). Second, both BOCES and school board members set policy for their entities (Education Law §§ 1950, 1604). Third, the DA's prosecutorial discretion was nondelegable: only the DA personally, not assistants, could exercise it.

The AG distinguished a 1973 informal opinion holding the offices of assistant district attorney and city councilman compatible. That conclusion turned on the fact that an assistant district attorney's duties could be reassigned. A district attorney has nondelegable responsibility for every aspect of the office, which meant recusal was unavailable as a cure. Even if the DA recused on every case touching the BOCES or school district, the recusal could not transfer the prosecutorial responsibility to someone else within the office. The dual roles undermined public confidence in the impartial exercise of prosecutorial power.

Currency note

This opinion was issued in 2000. 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 was recusal not enough?

A DA's prosecutorial discretion is nondelegable. The AG cannot simply hand decisions about whether to investigate or prosecute a particular institution to a subordinate. If the DA had to recuse from any case touching the BOCES or component school district, no one in the office could step in with equivalent authority. The conflict therefore could not be cured by avoidance of specific cases.

Does this also bar the DA from serving on a board outside his county?

The opinion's logic focused on overlap between the DA's prosecuting jurisdiction and the public entity. If the BOCES or school district were entirely outside the DA's territorial jurisdiction, the prosecutorial conflict identified here would not arise on the same facts. The AG did not address that scenario directly.

What about assistant district attorneys?

The AG distinguished the position of assistant district attorney expressly. In the 1973 opinion the AG cited, an ADA was found compatible with a city council seat because an ADA's duties are assignable; the DA can simply avoid assigning that ADA to matters involving the council. The DA has no equivalent escape valve.

Could the legislature override this by statute?

In principle, yes, dual-office incompatibility is a common-law doctrine that the legislature can adjust by clear statutory language. As of the date of the opinion, no statute purported to override the incompatibility for DAs and education boards.

Background and statutory framework

County Law § 700(1) places exclusive prosecutorial authority in the elected DA: "the district attorney shall conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he shall have been elected."

The Court of Appeals in People v. DiFalco confirmed that prosecutorial discretion extends to the decision whether to prosecute. People v. Bar-Noy described the DA's broad discretion in investigating suspected crimes.

Education Law § 1950 vests BOCES governance in the BOCES board. Education Law § 1604 vests school district governance in the board of education. Both bodies set policy for their entities. Education Law § 2103 imposes specific restrictions on dual office holding by school board members; the AG noted that § 2103 did not explicitly bar the DA combination, which is why the analysis proceeded under common-law incompatibility doctrine.

Citations

• County Law § 411 (sheriff and DA appointment provisions referenced in opinion header).
• County Law § 700(1) (DA's exclusive prosecutorial authority in the county).
• Education Law § 1604 (school district board governance).
• Education Law § 1950 (BOCES governance).
• Education Law § 2103 (school board member dual office restrictions; not applicable to DA combination here).
• People ex rel. Ryan v. Green, 58 N.Y. 295 (1874) (common-law incompatibility test).
• People v. Bar-Noy, 97 Misc. 2d 152 (N.Y. City Crim. Ct. 1978) (DA's broad investigative discretion).
• People v. DiFalco, 44 N.Y.2d 482 (1978) (DA's discretion includes whether to prosecute).
• 1973 Op Atty Gen (Inf) 184 (distinguishing ADA as compatible with council seat because duties are assignable).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2000-13_pw.pdf

Original opinion text

Opn. No. 2000-13
COUNTY LAW §§ 411, 700(1); EDUCATION LAW §§1950, 2103.
The position of district attorney is incompatible with membership on a BOCES and school board within
the jurisdiction of the district attorney.
July 10, 2000
Leslie A. Cataldo, Esq.
O'Hara & O'Connell
Attorneys for Jefferson Lewis
BOCES
Suite One Hundred
200 Salina Meadows Parkway
Syracuse, New York 13212-4505

Informal Opinion
No. 2000-13

Dear Ms. Cataldo:
You have inquired whether a member of both a board of cooperative education services
("BOCES") and the board of education of a school district that is a component of the BOCES may also
serve as an elected part-time district attorney. You advised us that both the school district and the
BOCES are located wholly within the jurisdiction of the district attorney's office. We conclude that the
school board and BOCES positions are incompatible with the position of district attorney.
In the absence of a constitutional or statutory prohibition against dual office holding, one person
may hold two offices simultaneously unless they are incompatible under common law. In People ex rel.
Ryan v. Green, 58 N.Y. 295 (1874), the Court of Appeals held that two offices are incompatible if one is
subordinate to the other or if there is an inherent inconsistency between the duties of the two offices.
While we have found no statute prohibiting the concurrent holding of these offices, there is, in our
view, a conflict between the duties of the offices. The district attorney conducts all prosecutions for
crimes and offenses cognizable by the courts of the county for which he shall have been elected. County
Law § 700(1). The district attorney has broad discretion in determining when and in what manner to
investigate suspected crimes, People v. Bar-Noy, 97 Misc. 2d 152, 156 (N. Y. City Crim. Ct. 1978), and
whether or not to prosecute a suspected offender, People v. DiFalco, 44 N.Y.2d 482, 486 (1978).
Generally, BOCES members determine policy for the BOCES. See Education Law §1950. Likewise,
members of boards of education determine school district policy. See Education Law § 1604.
None of these positions is subordinate to another because each is within a separate legal entity.
The District Attorney's broad law enforcement responsibilities, however, are incompatible with his
holding an office in another governmental entity within the same jurisdiction which he might be
compelled to investigate or prosecute. His positions on the boards of the BOCES and school district,
which establish policy for the public entities, could compromise an investigation of these entities by
him, as district attorney. In any event, this dual office holding raises questions as to whether the district
attorney can impartially carry out his broad prosecutorial discretion and, therefore, tends to undermine
public confidence in the integrity of government.

Our conclusion in 1973 Op Atty Gen (Inf) 184, that there was no inherent conflict between the
offices of assistant district attorney and city councilman, is distinguishable. The basis for that conclusion
is that a district attorney, unlike an assistant district attorney, has a nondelegable responsibility for all
aspects of the duties of his office. The conflict of duties between the positions you describe thus cannot
be resolved by recusal.
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,
WILLIAM E. STORRS
Assistant Solicitor General

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