Can someone serve on the city council if they also work as a city firefighter?

Subject

City council member and city firefighter are incompatible

Plain-English summary

The City of Auburn asked whether a member of the city fire department could also serve on the city council. The AG first noted the standard two-step: check the charter for any statutory prohibition, then apply the common-law Ryan v Green compatibility test if no statute resolves the question.

Auburn's council holds line-item budget approval power. That meant the council, including any council member who happened to also be a firefighter, would be setting the fire department's salary lines, benefits, equipment purchases, and supply budgets. The council member would be voting on his or her own pay and his or her colleagues' pay.

The AG flagged the broader problem too: the council weighs the needs of all city departments against each other when allocating funds. A firefighter on the council has divided loyalties whenever the budget allocation puts the fire department in competition with other departments. The conflict is structural and recurring, not occasional.

Recusal is the standard cure when compatible offices produce occasional conflicts. But when the conflicts are pervasive, recusal does not work because the holder would have to recuse from too much of the job to be doing it. The AG concluded the offices were incompatible at common law.

The AG distinguished a prior opinion (Informal Opinion No. 91-21) holding that recusal was a sufficient remedy for village trustees who also served as volunteer firefighters. That case involved an independent volunteer fire company receiving village funding. The structural difference: the volunteer firefighters were not direct employees whose pay the trustees set; they belonged to a separate entity. The Auburn situation involved direct city employment in a unit funded by line-item council vote, which is a much tighter conflict.

Currency note

This opinion was issued in 1995. 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 is recusal not enough here?

The AG draws a line between occasional and structural conflicts. The Ryan v Green compatibility test asks whether there is an inherent inconsistency between two offices. When the conflict comes up only on isolated matters, recusal cures it. When it comes up on essentially every budget vote (because line-item review touches the conflict point), the conflict is structural and the offices themselves are incompatible.

Could a paid city firefighter run for the council and resign from the department if elected?

The opinion does not directly address that, but the conventional answer in New York is yes. The incompatibility rule prevents simultaneous holding, not running. If elected, the person would have to choose one of the two positions and step down from the other.

What about volunteer firefighters on village or town boards?

The AG flags Informal Opinion No. 91-21 as the contrasting case. Volunteer firefighters affiliated with an independent volunteer fire company are not on the village payroll the same way; the company is a separate entity that the village funds. There, recusal on funding matters has been treated as enough. The Auburn case is different because the firefighter is a direct city employee.

Does this apply to police officers and council members too?

The reasoning would likely extend to any direct city employee whose unit's budget the council line-item reviews and whose pay the council sets. Police officers fit that mold. The AG has held similar offices incompatible in other informal opinions.

What if the city did not have line-item budget power?

Then the conflict on individual salary lines would be weaker. The AG specifically noted that the line-item power was what gave the council "extensive control" over firefighter compensation. Without line-item power, the analysis might shift toward recusal as a sufficient cure for occasional conflicts on big-picture allocations.

Background

The Ryan v Green test for incompatibility identifies two flavors of incompatibility: subordination ("you cannot be your own boss") and inherent inconsistency between duties. This case involves elements of both. The firefighter, as a city employee, is subordinate to the council (which sets his compensation and benefits). The inconsistency is in the duties: a council member must allocate finite funds among competing departments, and a firefighter-council member has a personal financial stake in the fire department's slice.

The opinion implicitly endorses the broader principle that when conflicts are predictable and frequent, the holder cannot effectively serve in both roles. That distinguishes it from common-law dual-office situations where conflicts arise only sporadically.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_95-12_pw.pdf

Original opinion text

The positions of member of the city council and city firefighter are incompatible. February 8, 1995

Andrew V. Lalonde, Esq.
Corporation Counsel
City of Auburn
Memorial City Hall
24 South Street
Auburn, NY 13021-3832

Informal Opinion
No. 95-12

Dear Mr. Lalonde:
You have asked whether a member of the City of Auburn fire department may also serve as a member of the city council. First, I suggest that you review the city charter to determine whether there is any prohibition on the holding of these two positions. In the absence of a statutory prohibition, the question remains whether the positions are compatible under the common law rule of compatibility of office. In the absence of a constitutional or statutory prohibition against dual-officeholding, one person may hold two offices simultaneously unless they are incompatible. The leading case on compatibility of office is People ex rel. Ryan v Green, 58 NY 295 (1874). In that case the Court held that two offices are incompatible if one is subordinate to the other or if there is an inherent inconsistency between the two offices. The former can be characterized as "you cannot be your own boss", a status normally easy to see. The latter is not easily characterized, for one must analyze the duties of the two offices to ascertain whether there is an inconsistency. An obvious example is the inconsistency of holding both the office of auditor and the office of director of finance. There are two subsidiary aspects of compatibility. One is that, although the common law rule of the Ryan case is limited to public offices, the principle equally covers an office and a position of employment or two positions of employment. The other is that, although the positions are compatible, a situation may arise where one has a conflict of interests created by the simultaneous holding of the two positions. In such a situation, the conflict is avoided by declining to participate in the disposition of the matter.

2
The city council, as the legislative body of city government, has responsibility for the preparation and adoption of the city budget which includes the budget of the fire department. You informed us that the council has line item approval power. Therefore, the council has extensive control over the salary and benefits of firefighters and the purchase of supplies and equipment for the fire department. The councilperson would determine his own salary and benefits and those of his co-workers in the fire department. In making these funding determinations, the city council must weigh the needs of all city departments. As a member of the city fire department, in our view the councilperson would have divided loyalties in determining the allocation of funds to city departments. Because of these considerable conflicts, recusal is not an effective remedy. We distinguish a prior opinion of this office in which we found that recusal was a sufficient remedy for village trustees who also serve as volunteer firefighters. Informal Opinion No. 91-21. In that case, the volunteer firefighters were affiliated with an independent volunteer fire company which received funding from the village. We conclude that the positions of member of the city council and city firefighter are incompatible. 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,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions