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Volume 3 - Opinions of Counsel SBEA No. 90

Opinions of Counsel index

Compatibility of office (tax collector - building inspector) - Town Law, §§ 35, 138:

The offices of tax collector and town building inspector are compatible, provided the individual may perform the duties of both without neglecting those of either.

Our opinion has been requested as to whether there may be any possible incompatibility between the offices of town tax collector and town building inspector.

It is a well settled rule of the common law that a public officer cannot hold two incompatible offices at the same time (Smith v. Dillon, 267 App. Div. 39, 44 N.Y.S.2d 719). The basis of this rule is to prevent multiple office holding so that offices and places of public trust will not accumulate in a single person. However, a person may hold two offices which are not incompatible except where such practice is prohibited by constitutional or statutory provision (People ex rel. Ryan v. Green, 58 N.Y. 295).

“Public offices are incompatible when their functions are inconsistent and their performance by one and the same person results in antagonism and a conflict of duty so that conceivably the incumbent of one cannot faithfully discharge with propriety the duties of both . . .” (1951 Op. Atty. Gen. 101). For example, if the offices are subordinate one to the other, or if they have the right to interfere, one with the other, then such offices are incompatible at common law (People ex rel. Ryan v. Green, supra; Fauci v. Lee, 38 Misc.2d 564, 237 N.Y.S.2d 469, aff’d, 19 App. Div.2d 777, 242 N.Y.S.2d 630).

Section 35 of the Town Law describes the powers and duties of the tax collector while section 138 of such law describes the office of building inspector. We can see no inherent incompatibility based on these two sections of the law.

It has been held that the offices of assessor and building inspector are compatible (15 Op.State Compt. 10). It would seem to follow that if the offices of assessor and building inspector are compatible, there would be no objection to one person occupying the positions of building inspector and tax collector since the tax collector may exercise far less discretion in the performance of his office than the assessor may in his.

Accordingly it is our opinion that the offices of tax collector and building inspector are compatible, provided the individual may perform the duties of both without neglecting those of either.

April 10, 1974

Updated: