Can the same person serve as both a water district commissioner and a fire district commissioner in New York when the two districts contract for hydrants and water service?

Plain-English summary

The attorney for the South Farmingdale Water District asked whether a single person could serve as both a Water Commissioner of that district and a Fire Commissioner of the South Farmingdale Fire District. The two districts had an active relationship: the Water District installed and maintained hydrants for the Fire District, sold metered water to the Fire District, and tested its backflow prevention devices. According to the attorney, that work was tiny compared to the Water District's multi-million-dollar operation.

The AG concluded the two offices were compatible, with a clear caveat: the commissioner had to recuse from any matter touching the contract, water sale, or backflow testing. Town Law § 20(4) (which bars holding more than one elective town office) did not apply because fire and water district commissioners are not town officers. No other statute or constitutional provision barred the combination.

But the AG used the same analysis it had applied to other dual-office questions: People ex rel. Ryan v. Green and O'Malley v. Macejka. The two offices were not subordinate one to the other (each district is its own political subdivision), but they did have a defined area of conflict. As long as that area remained narrow, recusal was enough. If recusal became routine enough to undermine the commissioner's ability to actually do either job, holding both would no longer be acceptable.

The AG also distinguished this situation from Op. Atty. Gen. (Inf.) No. 91-53, which had found incompatibility between a town water superintendent and a fire district commissioner. In that case the superintendent had no option to recuse from approving the contract specifications; here, the commissioner could step aside without disabling either office.

Currency note

This opinion was issued in 2002. 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

Q: Why didn't Town Law § 20(4) bar holding both offices?
A: Because fire and water district commissioners are not "town officers." A 1982 AG opinion and a 1980 AG opinion had already concluded that commissioners of independent improvement districts fall outside the § 20(4) prohibition on holding more than one elective town office.

Q: What was the specific area of conflict?
A: A contract between the two districts under which the Water District installed and maintained hydrants for the Fire District, plus sales of metered water to the Fire District, plus free backflow prevention device testing. Each side of the contract required commissioner approval, monitoring, and oversight, which a single person could not perform without divided loyalty.

Q: How is this different from the 1991 town water superintendent opinion?
A: In Op. Atty. Gen. (Inf.) No. 91-53, the water superintendent's job duties did not allow recusal from approving the hydrant contract. The superintendent was required to act, and so could not also serve as a fire commissioner who would benefit from that very contract. Here the contract was small enough relative to overall duties that recusal was a clean fix.

Q: When would recusal become inadequate?
A: When recusal became "frequent" enough that the commissioner could not "substantially perform" the duties of one or both offices. The AG did not draw a numerical line, leaving it to facts: a one-off recusal each year is acceptable; weekly recusals are not.

Q: Could other inter-district matters force a different result?
A: Yes. The opinion was tied to the specific contract, water sale, and testing arrangement described. If additional shared business developed, the conflict analysis would have to be redone.

Background and statutory framework

New York's special improvement districts (fire districts, water districts, fire protection districts, fire alarm districts) are political subdivisions of the state, governed by Town Law articles 11 and 12. Fire districts operate under Town Law § 176, which gives commissioners authority to contract for water supply and hydrant installation and maintenance. Water districts operate under Town Law §§ 198 and 215, which authorize water sales (including to fire districts).

The two districts in this opinion shared a service relationship that triggered Town Law's contract authority on both sides. That alone created the conflict zone the AG identified. But because fire and water districts are independent political subdivisions, neither commissioner is subordinate to the other in any structural sense, and there is no statutory bar to holding both elected positions.

The opinion follows the AG's general approach to dual-office questions: compatibility is the default, conflicts can be managed by recusal when narrow, and resignation becomes necessary only when the conflict pervades the day-to-day duties of one of the offices.

Citations and references

Statutes:

• Town Law § 20(4) (multiple elective town offices prohibited; not applicable to district commissioners)
• Town Law § 176 (fire district commissioner duties; hydrant and water supply contracts)
• Town Law § 198(3) (water district authority to sell to fire districts)
• Town Law § 215 (water district commissioner duties; sales to fire districts)

Cases:

• O'Malley v. Macejka, 44 N.Y.2d 530 (1978) (incompatibility test)
• People ex rel. Ryan v. Green, 58 N.Y. 295 (1874) (common law incompatibility rule)

Prior AG and Comptroller opinions:

• 2 Op. State Compt. 651 (1946) (no statutory bar to combining water and fire commissioner offices)
• 1980 Op. Atty. Gen. (Inf.) 101 (fire district commissioner not a town office)
• 1982 Op. Atty. Gen. (Inf.) 84 (commissioners are not town officers)
• Op. Atty. Gen. (Inf.) No. 91-53 (town water superintendent and fire district commissioner incompatible where recusal not possible)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2002-11_pw.pdf

Original opinion text

TOWN LAW §§ 20(4); 176; 198(3); 215.

One person may simultaneously hold the elected offices of commissioner of a water district and commissioner of a fire district, but must recuse himself or herself from participating in any matters relating to a contract between the districts for installation and maintenance of fire hydrants, sale of water, and testing of backflow devices. If these or other matters involving the two districts lead to frequent or substantial conflicts, recusal would not be an appropriate remedy, and the individual may not hold both positions.

March 20, 2002

Willis B. Carman, Jr., Esq.
Attorney, South Farmingdale
Water District
Carman, Callahan & Ingham, LLP
280 Main Street
Farmingdale, New York 11735

Informal Opinion
No. 2002-11

Dear Mr. Carman:

You have asked whether the same person may simultaneously hold the elected offices of Water Commissioner of the South Farmingdale Water District ("WD") and Fire Commissioner of the South Farmingdale Fire District ("FD"). You have advised that there is an ongoing contract between the districts under which the WD installs and maintains fire hydrants for the FD. The WD also sells metered water to the FD, and provides free testing of backflow prevention devices for the FD (although a fee may be imposed in the future). You have described the foregoing contract, sale of water, and testing as insignificant, comprising a negligible part of the WD's over-all, multi-million dollar operation.

We conclude that one person may simultaneously hold both offices, but must recuse himself or herself from participating in any matters relating to the aforementioned contract, sale of water, and testing. In the event there are more frequent conflicts, recusal would not be an appropriate remedy, inasmuch as frequent recusals would interfere with such person's ability to substantially perform his or her official duties. Under those circumstances, one person should not hold both positions.

Discussion

Generally, one person may hold two offices simultaneously unless a constitutional or statutory prohibition bars concurrent holding of the positions, or unless the offices are incompatible. See O'Malley v. Macejka, 44 N.Y.2d 530 (1978). In this case, there appears to be no constitutional or statutory prohibition against concurrent holding of the offices in question. Accordingly, the key issue is whether the offices are incompatible.

In the seminal case, 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 two offices. Accord O'Malley, 44 N.Y.2d at 535 (same). In Informal Opinion No. 91-53, we concluded that the positions of superintendent of a town water district and fire district commissioner are incompatible where the fire district enters into a contract with a town for rental of fire hydrants, and the town water district superintendent was responsible for approving the contract specifications. See Op. Atty. Gen. (Inf.) No. 91-53. Critical to that finding was the fact that the superintendent did not have the option of recusing himself from approving the contract specifications. See id.

Clearly the duties of the two commissioner positions in this case are incompatible with respect to the contract for fire hydrant installation and maintenance, and the sale of metered water, because one commissioner, as a member of the board of commissioners, has responsibility for approval of future contracts and amendments on behalf of the fire district and the other commissioner exercises this authority for the water district. Also, monitoring of compliance with contract terms and conditions similarly would cause a conflict. Compare Town Law § 176(12) (fire commissioners may "contract for a supply of water" and for fire hydrant installation and maintenance) with Town Law §§ 198(3)(b), 215(19) (water district commissioners may sell water to fire districts). For the same reason, the establishment of terms and conditions for testing of backflow prevention devices causes a conflict.

Recusal from participation in matters relating to the subject contract, sale of water, and testing appears to be sufficient in this case, inasmuch as you have indicated that these matters do not extensively affect each commissioner's overall responsibilities. Most of the powers and duties of fire district commissioners, which are set forth in Town Law § 176, concern fire district and board organizational and operational matters, and fire prevention. Similarly, water district commissioners' powers and duties mainly concern internal organizational and operational matters (see id. § 215), and supplying water to district inhabitants (see id. §§ 198(3), 215(12)). Moreover, each improvement district is an independent political subdivision, and neither commissioner position is subordinate to the other.

In view of the primary duties of the two commissioner positions, and your advice that the subject contract, sale of water, and testing comprise an insignificant part of the WD's multi-million dollar operation, we conclude that the two positions are compatible. However, if one person holds both positions, such person must recuse himself or herself from participating in the disposition of any of these matters. If conflicts of duties require frequent recusals, one person should not hold both positions.

The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of views of this office.

Very truly yours,

JAMES D. COLE
Assistant Solicitor General
In Charge of Opinions

By: _______
ANN P. ZYBERT
Assistant Solicitor General

Footnote: See 2 Op. State Compt. 651 (1946) (no constitutional or statutory prohibition to prevent one person from holding the offices of water commissioner and fire commissioner). We note that section 20(4) of the Town Law, which prohibits one person from holding more than one "elective town office," does not apply because the subject offices are not "town" offices. See 1982 Op. Atty. Gen. (Inf.) 84 ("Commissioners are not town officers."); 1980 Op. Atty. Gen. (Inf.) 101 (position of commissioner of fire district is not a town office within the ambit of Town Law § 20(4)).