Can the same New York resident serve as both deputy town clerk for a town and as an elected village trustee within that town?

Plain-English summary

The Town of Evans's attorney asked whether someone could serve simultaneously as deputy clerk of the Town of Evans and as elected trustee of a village located within the Town. The AG said yes, the positions are compatible.

The deputy town clerk is appointed by the town clerk under Town Law § 30(10). The deputy assists the town clerk with the clerk's duties (Town Law § 30: maintaining the books and records, recording meetings and resolutions, certifying appointments, issuing licenses and permits) and stands in for the clerk during the clerk's absence. The village trustee is an elected member of the village board of trustees, which is the legislative body of the village (Village Law §§ 3-301(3), (4), 4-412).

The AG first checked for any statutory prohibition. There is none. Town Law § 20(4) prohibits anyone from holding more than one elective town office, but only one of the positions here (village trustee) is elective, and it is a village office, not a town office. Village Law § 3-300(3) prohibits holding both an appointive and an elective village office simultaneously, but again the deputy town clerk is a town position, not a village one.

Without a statutory prohibition, the question turns on the common-law incompatibility test. Under O'Malley v. Macejka, two positions are incompatible if one is subordinate to the other or if there is an inherent inconsistency in their duties. The AG found neither here.

Neither office is subordinate to the other. The village trustee, as a village legislator, does not control or supervise the town deputy clerk. The deputy town clerk reports to the town clerk, not to any village official. The duties of the two positions are also independent of each other: the deputy clerk handles administrative town business (records, licenses, certifications), and the village trustee participates in legislative decisions for the village. There is no logical intersection where the official's duty as town deputy clerk would force a decision about the village trustee role, or vice versa.

The AG concluded that one person could serve in both positions, subject to the requirement in Village Law § 3-300(4) that the person be able to "fully discharge the duties and obligations of the village office while carrying out the duties and obligations" of the deputy town clerk position. The AG cited multiple prior opinions reaching similar conclusions: Op. Att'y Gen. (Inf.) No. 98-17 (trustee of one village may serve as clerk-treasurer of another village); Op. Att'y Gen. (Inf.) No. 84-63 (village trustee may serve as town tax collector); 1978 Op. Att'y Gen. (Inf.) 200 (village trustee may simultaneously hold appointive position of deputy town supervisor); 1954 Op. St. Comptr. No. 6665 (town clerk may also serve as village mayor).

The AG closed with the standard caveat: even compatible positions can throw up specific conflicts (a single matter in which the official's town role pulls one way and the village role pulls another). The remedy is recusal on that specific matter, not refusal to hold one of the offices.

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 the test for compatibility of office in New York?
A: Under O'Malley v. Macejka, two offices are compatible unless (1) one is subordinate to the other, (2) the duties are inherently inconsistent, or (3) a statute or the Constitution specifically prohibits the combination. The test applies whether the positions are public offices or positions of employment.

Q: Why don't town and village positions automatically conflict?
A: Towns and villages are separate units of local government in New York, with distinct legal personalities, separate budgets, separate elections, and separate areas of authority. Even when a village sits within a town, the village is not part of the town's governmental structure. So someone working for one and serving as a legislator for the other is not in a "supervisor-subordinate" relationship with themselves.

Q: When would a conflict arise that requires recusal?
A: Anytime the town deputy clerk has duties that touch on the village's interests or vice versa. Examples: a town-village inter-municipal agreement that comes before the village board for approval; a record dispute or document request involving both jurisdictions; tax allocation or shared-services questions. In those moments, the official should recuse from the village board vote and let the rest of the trustees decide.

Q: Does this analysis change if the deputy town clerk is a full-time paid position?
A: The pay scale doesn't change the compatibility analysis. The Village Law § 3-300(4) requirement is that the person be able to "fully discharge" both sets of duties, which addresses time conflicts; it does not transform an otherwise compatible pair into an incompatible one because of working hours.

Q: What if the village board votes on a contract with the town?
A: That's a conflict of interest situation, governed by General Municipal Law article 18. The village trustee should disclose the interest and recuse from the vote. Compatibility of office does not authorize the trustee to participate in matters where they have a personal or fiduciary interest in the other entity.

Q: How does this fit with prior AG opinions about dual office-holding?
A: The 2006 opinion is part of a long line. Most pairings between town and village offices end up compatible, because the two governments are separate. The combinations that fail are typically those where one position supervises or audits the other (the 2006-03 deputy-supervisor / confidential-secretary opinion is the classic example).

Background and statutory framework

Town positions involved. Town Law § 30 lists the town clerk's statutory duties: maintaining records, recording board meetings and resolutions, certifying appointments, and issuing certain licenses and permits. Town Law § 30(10) authorizes the town clerk to appoint a deputy. The deputy assists with the clerk's duties and acts as town clerk when the clerk is absent or unable to act. The deputy is an appointed town position, not an elected one.

Village positions involved. A village trustee is an elected member of the village board of trustees, the legislative body of the village. Village Law §§ 3-301(3), (4), 4-412 set the qualifications, term, and authority. Trustees vote on local laws, the village budget, and village governance generally.

Statutory prohibitions checked. Town Law § 20(4) prohibits holding more than one elective town office. Not applicable here: only one position is elective (village trustee), and it is a village office. Village Law § 3-300(3) prohibits one person from simultaneously holding an appointive and elective village office. Not applicable: the deputy town clerk is a town, not village, position.

Common-law compatibility test. 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). Two positions are incompatible if one is subordinate to the other, or if their duties are inherently inconsistent. The common-law rules apply to offices and employment positions alike.

Compatibility, but recusal on actual conflicts. Even where two positions are compatible in the abstract, particular matters may pit one set of duties against the other. The remedy is recusal in that matter, not abandonment of one position. O'Malley v. Macejka, 44 N.Y.2d at 533; Op. Att'y Gen. (Inf.) No. 98-17.

Citations and references

Statutes:

• Village Law §§ 3-300(3), (4), 3-301(3), (4), 4-412 (village trustee qualifications and authority)
• Town Law § 20(4) (single elective town office)
• Town Law § 30 (town clerk duties)
• Town Law § 30(10) (town clerk's authority to appoint deputy)

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. 98-17 (trustee of one village may serve as clerk-treasurer of another village)
• Op. Att'y Gen. (Inf.) No. 84-63 (village trustee may serve as town tax collector)
• 1978 Op. Att'y Gen. (Inf.) 200 (village trustee may hold appointive position of deputy town supervisor)
• Op. Att'y Gen. (Inf.) No. 97-F7 (officer vs. employee distinction)

State Comptroller:

• 1954 Op. St. Comptr. No. 6665 (town clerk may also serve as village mayor)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2006-5_pw.pdf

Original opinion text

Village Law §§ 3-300 (3) and (4), 3-301 (3) and (4), 4-412; Town Law §§ 20(4), 30, 30(10)

The positions of deputy town clerk and village trustee are compatible.

June 23, 2006

J. Grant Zajas
Town Attorney
Town of Evans
8787 Erie Road
Angola, New York 14006-9600

Informal Opinion
No. 2006-5

Dear Mr. Zajas:

You have requested an opinion regarding the compatibility of the positions of deputy clerk for the Town and trustee of a village located within the Town. We are of the opinion that these positions are compatible and thus may be simultaneously held by one person.

A village trustee is elected and serves as a member of the village board of trustees, the legislative branch of village government. See Village Law §§ 3-301(3) and (4), 4-412. The deputy town clerk is appointed by the town clerk. Town Law § 30(10).

We are not aware of any constitutional or statutory provision that would prohibit the simultaneous holding of these two positions. Town Law § 20(4), prohibiting a person from holding more than one elective town office, would not apply because the individual would be holding only one town position, and it is an appointive position. Village Law § 3-300(3), prohibiting one person from simultaneously holding an appointive and an elective village office, similarly would not apply because the individual would be holding only an elective village office.

In the absence of a constitutional or statutory prohibition against dual office-holding, one person may hold two offices simultaneously unless they are incompatible. Two offices are incompatible if one is subordinate to the other or 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, 304-05 (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 position of employment may be significant, the common law rules regarding dual office-holding apply equally to an office, which generally involves the exercise of sovereign authority and discretion, and a position of employment. See Matter of Dupras v. County of Clinton, 213 A.D.2d at 953.

With respect to the positions of village trustee and deputy town clerk, neither position is responsible to the other, and thus neither is subordinate to the other. You have indicated that the duties of deputy town clerk are to assist the town clerk in the performance of his or her duties, and to act as town clerk in the event the town clerk is absent or unable to act. The town clerk's duties include maintaining the books and records of the town, making records of meetings and resolutions, certifying appointments, and issuing licenses and permits. Town Law § 30. We foresee no intersection of the duties of the position of deputy town clerk and those of village trustee that would require the subordination of the interests of one municipality to those of the other. We therefore conclude that one person may serve in both positions, subject to the requirement of Village Law § 3-300(4) that he or she be able to "fully discharge the duties and obligations of the village office while carrying out the duties and obligations" of the position of deputy town clerk. Cf. Op. Att'y Gen. (Inf.) No. 98-17 (trustee of one village may serve as clerk-treasurer of another village); Op. Att'y Gen. (Inf.) No. 84-63 (village trustee may serve as town tax collector); 1978 Op. Att'y Gen. (Inf.) 200 (elected village trustee may simultaneously hold appointive position of deputy town supervisor); 1954 Op. St. Comptr. No. 6665 (town clerk may also serve as village mayor).

Even where positions are compatible, in specific situations a conflict of interest 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. See, e.g., O'Malley v. Macejka, 44 N.Y.2d 530, 533 (1978); Op. Atty. Gen. (Inf.) No. 98-17. Thus, in the event the responsibilities of the positions do conflict, the proper remedy would be for the individual to recuse him- or herself from participating in the matter.

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,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions