Can a town supervisor in New York appoint the same person to serve as their confidential secretary and as deputy supervisor?

Plain-English summary

The Town of Poughkeepsie's attorney asked whether the town supervisor could appoint one person to serve simultaneously as confidential secretary to the supervisor and as deputy supervisor. The AG said no, because of the supervisory relationship that arises when the deputy stands in for the supervisor.

In New York, a first-class town supervisor can designate a confidential secretary under Town Law § 29(15); that position is appointed by and accountable to the supervisor. A town board may also establish the position of deputy supervisor under Town Law § 42; the supervisor appoints the deputy, who serves at the supervisor's pleasure. The deputy steps into the supervisor's shoes "during the absence or inability to act of the supervisor, or while the office of supervisor is vacant." During those periods, the deputy exercises all the supervisor's statutory powers (with two exceptions: no vote on town board matters in their capacity as deputy, and no service on the county board of supervisors).

Town Law § 42 explicitly contemplates that a deputy supervisor may also be "a town officer, official or employee," and may receive separate compensation for both roles. But the AG had previously interpreted this language with a limit: the deputy supervisor cannot also hold a town position that is incompatible with the deputy supervisor role. Op. Att'y Gen. (Inf.) No. 86-30 (deputy supervisor + town clerk incompatible); Op. Att'y Gen. (Inf.) No. 2000-11 (deputy supervisor + town tax certiorari counsel incompatible).

Applying the common-law incompatibility test, the AG noted there was no inherent inconsistency between the duties of the two positions on their face. Both positions are aligned with the supervisor. But two positions are incompatible if one is subordinate to the other, and that is what happens here: when the supervisor is absent or the position is vacant, the deputy supervisor performs the supervisor's duties, including the duty to supervise the confidential secretary. That makes the deputy-supervisor-as-acting-supervisor the boss of the confidential secretary, who is the same person.

The AG was direct about why that's a problem. The acting supervisor would be answerable only to himself for his own performance as confidential secretary, including for working hours, schedule, and time sheets. The deputy supervisor role itself has limited accountability (answerable only to the supervisor who appointed them, who is by definition absent during the deputy's service). The Legislature accepted that limited-accountability gap as inherent to the deputy supervisor role, but had no reason to extend it to other positions.

The AG noted a common alternative: appoint a sitting town board member as deputy supervisor. That arrangement keeps continuity in government, gives the deputy a vote in their separate capacity as town board member, and avoids the self-supervision issue.

Currency note

This opinion was issued in 2006. 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: What is "incompatibility of office" in New York common law?
A: It's a doctrine that prevents one person from holding two offices whose duties conflict. Two offices are incompatible if one is subordinate to the other (the typical case), or if there is an "inherent inconsistency" between the duties of the two positions, meaning that performing one would require decisions about or against the other.

Q: Why isn't the confidential secretary just a private employee role, free from these rules?
A: New York courts apply the common-law incompatibility doctrine to positions of employment as well as to public offices. The distinction matters in other contexts (like Public Officers Law obligations), but not for incompatibility analysis. Dupras v. County of Clinton makes this clear.

Q: What about appointing a town board member instead?
A: The AG noted this as the common (and clean) solution. Town Law § 42 expressly contemplates a town board member serving as deputy supervisor. The town board member's vote on the board (in their board-member capacity, not their deputy capacity) preserves their normal accountability, and avoids the self-supervision problem because they are not the supervisor's secretary.

Q: Could a town board adopt a resolution to allow the dual role?
A: The opinion did not address this and the answer is doubtful. Incompatibility analysis turns on the statutory duties of the positions; a resolution cannot rewrite Town Law § 42's allocation of the supervisor's duties to the deputy.

Q: Does this rule apply to any combination of supervisor-aligned positions?
A: The opinion noted that one person should not simultaneously hold the position of bookkeeper/secretary to the supervisor and town councilperson (Op. Att'y Gen. (Inf.) No. 88-4). The deputy-supervisor relationship is the same problem on a wider scale: the deputy briefly assumes the supervisor's full supervisory authority. The 2006 opinion's conclusion would extend to any town position that the supervisor directly supervises.

Q: How does this fit with the deputy supervisor + town clerk incompatibility?
A: Op. Att'y Gen. (Inf.) No. 86-30 held the deputy supervisor and town clerk incompatible because that combination would erode the system of fiscal checks and balances (the town clerk's books would be audited by the same official whose actions they record). The 2006 confidential-secretary opinion is the same kind of conflict, narrower in subject matter but built on the same self-supervision foundation.

Background and statutory framework

The two positions. Town Law § 29(15) authorizes the town supervisor of a first-class town to designate a bookkeeper or confidential secretary, or both. Compensation is fixed by the town board and is a town charge. In a second-class town, the town board must authorize the designation. The confidential secretary's duties typically involve administrative work as directed by the supervisor; the position is appointed by the supervisor and the secretary is supervised by the supervisor directly.

Town Law § 42 authorizes a town board to establish the office of deputy supervisor. The deputy is appointed by the supervisor and serves at the supervisor's pleasure. (If the supervisor fails to appoint within five days, the town board may appoint.) When the supervisor is absent, unable to act, or the office is vacant, the deputy presides at town board meetings (without a vote in the deputy capacity) and exercises all the supervisor's statutory duties, except service on the county board of supervisors. "Any person, including a town officer, official or employee, may be appointed deputy supervisor," with the same qualifications as an elective town officer. The town board sets compensation, which may be in addition to other town pay.

Incompatibility test. Under O'Malley v. Macejka, two offices are incompatible if one is subordinate to the other or there is an inherent inconsistency between them. The test applies to offices, employments, and combinations of both. The fact that Town Law § 42 expressly allows "any person, including a town officer, official or employee" to be deputy supervisor does not override incompatibility analysis; the AG has previously read that phrase as not authorizing a deputy-supervisor appointment of an incompatible town position (Op. Att'y Gen. (Inf.) No. 86-30; Op. Att'y Gen. (Inf.) No. 2000-11).

Application to confidential secretary + deputy supervisor. The duties themselves are not in conflict. Both assist the supervisor. The problem is supervision: when the supervisor is unavailable and the deputy is acting, the deputy directly supervises the confidential secretary. Two positions are incompatible when one is subordinate to or subject to audit by the other (Dupras, 213 A.D.2d at 953). The fact that the supervisory period may be brief or intermittent doesn't cure the problem: service as deputy supervisor can be extended (Op. Att'y Gen. (Inf.) No. 2000-11). The unaccountability inherent in the deputy supervisor role (answerable only to the absent supervisor) makes the self-supervision worse.

A clean alternative. Town Law § 42 implies that a town board member may serve as deputy supervisor (by referring to "deputy supervisor" voting "in his capacity as deputy supervisor"). The AG previously confirmed in Op. Att'y Gen. (Inf.) No. 2000-11 that this is the common (and statutorily contemplated) arrangement.

Citations and references

Statutes:

• Town Law § 29(15) (bookkeeper/confidential secretary designation)
• Town Law § 42 (deputy supervisor)
• Town Law § 20(1)(a) (town officer/employee appointments by town board)
• Town Law § 20(4) (one person, one elective town office)
• Town Law § 23 (qualifications for town officers)
• Public Officers Law § 3 (residency requirement for local office)

Cases:

• O'Malley v. Macejka, 44 N.Y.2d 530 (1978)
• People ex rel. Ryan v. Green, 58 N.Y. 295 (1874)
• Matter of Dupras v. County of Clinton, 213 A.D.2d 952 (3d Dep't 1995)
• Haller v. Carlson, 42 A.D.2d 829 (4th Dep't 1973)

Prior AG opinions:

• Op. Att'y Gen. (Inf.) No. 86-30 (deputy supervisor + town clerk incompatible)
• Op. Att'y Gen. (Inf.) No. 88-4 (bookkeeper/secretary + town councilperson incompatible)
• Op. Att'y Gen. (Inf.) No. 90-56 (related)
• Op. Att'y Gen. (Inf.) No. 97-F7 (public officer vs. public employee distinction)
• Op. Att'y Gen. (Inf.) No. 2000-5 (qualifications for elective town office)
• Op. Att'y Gen. (Inf.) No. 2000-11 (independent contractor + deputy supervisor incompatible)

State Comptroller:

• Op. St. Comptr. No. 87-38 (supervisor's pay can reflect self-performance of bookkeeper functions)
• Op. St. Comptr. No. 91-53 (town board member may be appointed deputy supervisor)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2006-3_pw.pdf

Original opinion text

PUBLIC OFFICERS LAW § 3; TOWN LAW §§ 20(1)(a), 20(4), 23, 29(15), 42

The positions of deputy supervisor and confidential secretary to the supervisor are incompatible.

February 28, 2006

Thomas D. Mahar, Jr.
Town Attorney
Town of Poughkeepsie
Legal Department
One Overocker Road
Poughkeepsie, NY 12603

Informal Opinion
No. 2006-3

Dear Mr. Mahar:

You have asked whether the Town Supervisor may appoint the same person to serve as the supervisor's confidential secretary and as deputy supervisor. For the reasons that follow, we conclude that the two positions are incompatible and should not be held simultaneously by the same individual.

BACKGROUND

The Town of Poughkeepsie is a first class town with suburban town status. See Town Law art. 3-A (suburban town law). Pursuant to Town Law § 29(15), the town supervisor of a first class town may designate a bookkeeper or confidential secretary, or both. The person designated by the supervisor as bookkeeper or confidential secretary receives compensation for his services, which is fixed by the town board and is considered a town charge. Town Law § 29(15). You have indicated that in the Town of Poughkeepsie the position of confidential secretary to the supervisor is a full-time position funded by the Town. The duties of this position generally involve the performance of administrative duties as directed by the supervisor.

The town board of any town may establish the office of deputy supervisor. Town Law § 42. The deputy supervisor is appointed by the supervisor and serves at her pleasure. Id. The town board has authority to appoint a deputy if the supervisor fails to appoint one within five days after the office is established or within five days after a vacancy is created. Id. "During the absence or inability to act of the supervisor, or while the office of supervisor is vacant," the deputy supervisor presides at meetings of the town board when present and is vested with all of the powers of the supervisor and may perform all of the statutory duties of the supervisor, except that he has no vote in his capacity as deputy supervisor on matters before the town board and does not serve as a member of the county board of supervisors. Id. If the office of supervisor becomes vacant, the deputy supervisor in office continues to serve until the deputy's successor is appointed. Id.

"Any person, including a town officer, official or employee, may be appointed deputy supervisor, provided that the person appointed shall possess the same qualifications as an elective town officer." Id. The town board determines the compensation for this position, which may be in addition to any other compensation the individual may receive as a town officer, town official or town employee. Id. The Town of Poughkeepsie has created the position of deputy supervisor to act in the periodic absence of the supervisor. You have indicated that the deputy supervisor does not have any other duties. Your question is whether the supervisor may appoint the same individual to serve as her confidential secretary and as deputy supervisor.

ANALYSIS

In the absence of a constitutional or statutory prohibition, one person may hold two offices simultaneously unless they are incompatible. Two offices are incompatible if one is subordinate to the other or if there is an inherent inconsistency between the two offices. See O'Malley v. Macejka, 44 N.Y.2d 530, 535 (1978); People ex rel. Ryan v. Green, 58 N.Y. 295, 304-305 (1874); Matter of Dupras v. County of Clinton, 213 A.D.2d 952, 953 (3d Dep't 1995). Although in other contexts the differences between a public office and a position of employment may be significant, the common law rules regarding dual officeholding apply equally to an office, which generally involves the exercise of sovereign authority and discretion, and a position of employment. See Matter of Dupras, 213 A.D.2d at 953.

We are not aware of any statutory or constitutional provisions that prohibit one individual from serving as confidential assistant to the supervisor and deputy supervisor. Cf. Town Law § 20(4) ("[n]o person shall be eligible to hold more than one elective town office"). The statute governing the position of deputy supervisor requires only that the person appointed to this position possess the same qualifications as an elective town officer, i.e., that the person be at least 18 years of age, a citizen of the United States, and a resident of the State and of the town, see Op. Att'y Gen. (Inf.) No. 2000-5 (citing Public Officers Law § 3 and Town Law § 23). Additionally, the statute specifically contemplates that the deputy supervisor may hold another town office or position of employment. See Town Law § 42 ("Any person, including a town officer, official or employee, may be appointed deputy supervisor . . . . [and his compensation for the position] may be in addition to any other compensation he may receive as a town officer, town official or town employee."). The legislative history to Town Law § 42 is silent with respect to the Legislature's intention in authorizing the appointment of "any person." We have previously concluded that this language should not be used to authorize the appointment of an town officer or employee as deputy supervisor if the two positions are otherwise incompatible. See Op. Att'y Gen. (Inf.) No. 86-30 (same individual should not serve as deputy supervisor and town clerk because this would erode system of fiscal checks and balances); see also Op. Att'y Gen. (Inf.) No. 2000-11 (stating that reference to appointment of "any person" in Town Law § 42 "cannot be construed to mean 'any person' without limitation" and concluding that independent contractor who defends town in real property tax certiorari proceedings would have prohibited conflict of interest if he served as deputy supervisor). Thus, the issue is whether the positions may be held by one person under the common law standards of compatibility of office.

The duties of the two positions are compatible and do not conflict. The confidential secretary serves as assistant to the supervisor and is thus involved in the same matters, and for the same purposes, as the supervisor. Indeed, if the supervisor did not designate a confidential secretary, she could be performing the secretary's functions herself. See Op. State Compt. No. 87-38 (in setting salary for supervisor, town board may take into consideration fact that supervisor has not designated a separate bookkeeper and will be performing functions of the position himself). However, we believe that the positions are incompatible for another reason. When exercising the duties of deputy supervisor, the individual will be in a direct supervisory role with respect to the confidential secretary. Two positions are incompatible when one position is subordinate to the other. See Dupras v. County of Clinton, 213 A.D.2d 952, 953 (3d Dep't 1995) ("Incompatibility exists when one office is subordinate to the other or subject to audit or review by the second.").

Unlike most town officials and employees who are subject to the supervision and control of the town board, the secretary is appointed and directly supervised by the supervisor and serves at her pleasure. Thus, when the deputy supervisor is performing the duties of the supervisor during the supervisor's absence or inability to serve, or when there is a vacancy in that position, he will be the sole supervisor of himself as confidential secretary and he alone will be answerable for the performance of his duties as secretary and for the salary allocated for that position. For example, the individual would be responsible for determining his own working hours and work schedule as secretary and for the accuracy of his time sheets.

Further, the individual, while performing the duties of deputy supervisor, would be without direct supervision and accountability. That is, while the supervisor, who is elected, is answerable to the electors of the town, the deputy supervisor is answerable only to the official who has appointed him, who generally will be, and in this case is, the supervisor, who necessarily will be unavailable or absent when the deputy is serving in that role. Although this lack of accountability flows from the nature of the deputy supervisor position, see Town Law § 42, the Legislature has not provided for such lack of accountability with respect to other positions that the deputy supervisor may hold. For all of these reasons, we find that having one person serving in both roles creates a potential conflict that could erode the public's confidence in the town government and thus renders the positions incompatible. The fact that the deputy will serve in that role only during the supervisor's absence or inability to act, or during a vacancy in that office, does not obviate the conflict. As we have previously noted, service as a deputy supervisor can last for an extended period of time. See Op. Att'y Gen. (Inf.) No. 2000-11.

We are aware of the apparent efficiency in having the supervisor's confidential assistant serve as the deputy supervisor, the confidential assistant is likely to be familiar with most aspects of the supervisor's duties which would allow him more easily to fulfill the supervisor's functions. However, on balance, we believe that the potential conflict and appearance of impropriety created by the direct supervisory relationship between these two positions outweighs the usefulness of this arrangement. We note that a common arrangement is to have another member of the town board serve as deputy supervisor, which would serve the statutory purpose of providing for continuity in government while avoiding this conflict. See Op. Att'y Gen. (Inf.) No. 2000-11.

CONCLUSION

One person should not simultaneously serve as deputy supervisor and as confidential secretary to the supervisor.

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

LAURA ETLINGER
Assistant Attorney General
In Charge of Opinions