Can a New York town board member also work as the deputy highway superintendent or a town highway laborer?

Plain-English summary

The Town of Halfmoon asked the AG whether the same person could serve as a town board member and simultaneously as the deputy superintendent of highways or as a laborer in the town's highway department. The AG said no, the positions are incompatible.

The AG's framework was the long-standing test from People ex rel. Ryan v Green, 58 NY 295 (1874): two positions are incompatible if one is subordinate to the other (you cannot be your own boss) or if there is an inherent inconsistency between the duties. Both flaws appeared here. The town board sets and approves the highway budget. The deputy highway superintendent and highway laborers depend on that budget for their own salaries and their colleagues' salaries, so a board member who also holds one of those jobs is voting on his own pay. And the town highway superintendent supervises the deputy and laborers but reports through the budget process to the town board, which the deputy or laborer would be sitting on. That creates a "your subordinate is your boss" knot at the supervisory level too.

The AG rejected recusal as a workaround. Highway is a major chunk of the town budget. If the dual officeholder had to recuse from highway budget votes, the recusal would distort a large part of the town's allocation decisions. The AG's rule was that recusal is not an appropriate remedy where the conflict is inevitable and substantial.

Currency note

This opinion was issued in 1996. 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

What is the People v Green compatibility test?
Two public positions are incompatible if one is subordinate to the other or if there is an inherent inconsistency between the duties. The subordination prong is the "you cannot be your own boss" rule. The inconsistency prong requires looking at the duties of both positions to see whether they pull in opposite directions. An example given in the opinion: holding both auditor and director of finance is inconsistent, because one role checks the other.

Why is recusal not enough here?
The AG said recusal works when the conflict is occasional and bounded. It does not work when the conflict is built into the job. The town board votes on the highway budget regularly, and the highway budget is a major share of the town's overall finances. Asking the dual officeholder to step out every time the budget is touched would remove the member from a substantial portion of the board's work.

Did the opinion distinguish between the deputy superintendent and a highway laborer?
The AG treated them together. Both positions are paid out of the highway budget, both are supervised by the town highway superintendent, and both are affected by the town board's appropriation decisions. The compatibility problem is the same: subordination plus inherent inconsistency, and the share of town spending involved is substantial enough that recusal is not a solution.

What about the superintendent of highways and the town board?
The opinion does not directly address that pairing, but the AG's reasoning would apply at least as strongly: the superintendent is at the top of the highway operation, and the town board approves the budget and salaries. A separate body of opinions and statutes governs the highway superintendent's relationship with the town board. Whether that combination is also incompatible would depend on the specific arrangement and any statutory provisions on point.

How is the deputy superintendent appointed?
Under Town Law § 32(2) at the time of the opinion, the town board could establish the office of deputy superintendent of highways. The deputy was then appointed by, and served at the pleasure of, the town highway superintendent.

How are highway department laborers hired?
Under Highway Law § 140(4) at the time of the opinion, the town highway superintendent, within the limits of appropriations and subject to town board approval, could employ persons necessary for maintenance and repair of town highways and bridges and removal of snow obstructions. The superintendent supervised those persons.

Background and statutory framework

The opinion turns on three building blocks:

Town Law § 32(2) authorized the town board to establish the office of deputy superintendent of highways. The deputy was appointed by the town highway superintendent and served at the superintendent's pleasure.

Highway Law § 140(4) authorized the town highway superintendent, subject to appropriations and town board approval, to hire laborers for maintenance, repair, and snow removal.

People ex rel. Ryan v Green, 58 NY 295 (1874) supplied the test for incompatibility of office, with two prongs: subordination and inherent inconsistency. The AG noted two subsidiary aspects of compatibility: the principle covers an office and a position of employment, or two positions of employment, and even where positions are compatible, recusal may be necessary for specific matters where a conflict arises.

In the highway department setting, both prongs were satisfied. The town board controlled the highway budget, the highway superintendent reported into that budget process, and the deputy and laborers were paid from it. Recusal could not bridge the gap because of the share of the town budget involved.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-12_pw.pdf

Original opinion text

HIGHWAY LAW § 140(4); TOWN LAW § 32(2).

A person may not serve simultaneously on the town board and also as the deputy superintendent of highways or as a laborer in the highway department.

March 25, 1996

Robert J. Chauvin, Esq.
Town Attorney
Town of Halfmoon
P.O. Box 1258
Clifton Park, NY 12065

Informal Opinion No. 96-12

Dear Mr. Chauvin:

You have asked whether a person may serve simultaneously as member of the town board and also as a laborer in the highway department or as deputy superintendent of highways.

The town board may at any time establish the office of deputy superintendent of highways. Town Law § 32(2). The deputy superintendent of highways is appointed by and serves at the pleasure of the town superintendent of highways. Id. The town superintendent of highways, within the limits of appropriations and subject to the approval of the town board, may employ persons necessary for the maintenance and repair of town highways and bridges and for the removal of obstructions caused by snow, and is responsible for the supervision of these persons. Highway Law § 140(4).

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 readily identifiable. 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.

In our view, simultaneous service as a member of the town board and as the deputy highway superintendent or as a laborer in the highway department is incompatible. As a member of the town board, this individual would have a direct interest in the budget of the highway department. The highway department budget would determine not only his own salary as the deputy superintendent of highways or as a laborer in the department but also the salary of his colleagues in the department. Further, in that the superintendent of highways is the supervisor of the deputy and of the laborer, these individuals as members of the town board may not be able to act impartially with respect to the highway budget, presented by the superintendent of highways. Also, the superintendent of highways may be unable to supervise impartially the deputy or laborer, realizing that these individuals serve on the town board and have control over the town highway budget.

Since the highway budget is a significant portion of the overall town budget and, therefore, to a large degree affects the allocation of resources among all town departments, recusal from voting on the town highway budget is not an appropriate solution. Recusal is an inappropriate remedy where a conflict is inevitable and substantial.

We conclude that a person may not serve simultaneously on the town board and also as the deputy superintendent of highways or as a laborer in the highway department.

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