In New York, can the same person serve as deputy town supervisor and president of a local school board at the same time?

Plain-English summary

The Town of Westfield asked whether a town board member who had been appointed deputy town supervisor could also serve as president of the local school board. A 1966 informal opinion had said no, but the 1996 opinion took the question up again and reached the opposite result.

New York's Education Law § 2103(1) makes a town supervisor ineligible to be a school board member, and § 2112(3) vacates a school board seat the moment the holder accepts the supervisor's office. Town Law § 23(1) reinforces the same bar in the other direction. Those prohibitions, the AG's office concluded, attach specifically to the office of supervisor, not to the deputy supervisor. The deputy is a separate office created by Town Law § 42 and appointed by the supervisor. The deputy's fiscal duties under Town Law §§ 29 and 125 only kick in when the supervisor is absent, unable to act, or the office is vacant, and the deputy cannot vote on town board matters. The opinion superseded 1966 Op Atty Gen (Inf) 81 and concluded any conflicts in particular town-school district transactions could be handled by recusal.

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

Q: Why did the AG's office reverse the 1966 opinion? A: The 1996 opinion read the statutory bars in Education Law §§ 2103(1) and 2112(3) and Town Law § 23(1) as written: each prohibits the office of "supervisor" from being held with a school board seat. The Legislature could have written "or deputy supervisor" but did not. The office concluded there was no warrant for extending the bar by interpretation.

Q: Doesn't the deputy supervisor stand in for the supervisor sometimes? A: Yes, but only when the supervisor is absent, unable to act, or the office is vacant. In that situation the deputy exercises the supervisor's powers except for two specific things: voting on the town board and serving as a member of the county board of supervisors. Routine acting-supervisor service alone does not, in the AG's view, create a permanent conflict with school board membership.

Q: What about conflicts of interest in specific transactions? A: The opinion acknowledged that town-school district business could occasionally pit the two roles against each other. The recommended fix was recusal in particular matters, not a categorical bar on holding both offices.

Q: What is "incompatibility" of offices under New York law? A: Two offices are incompatible when one is subordinate to the other or when their duties inherently conflict. The leading case is People ex rel. Ryan v Green, 58 NY 295 (1874). The 1996 opinion found no inherent conflict between deputy supervisor and school board president because the deputy's substantive role (fiscal stand-in without a vote) does not regularly intersect with a school board's responsibilities.

Background and statutory framework

Town Law § 42 lets the town board establish the office of deputy town supervisor. The deputy is appointed by, and serves at the pleasure of, the supervisor. The deputy must take and file the constitutional oath of office and post an official undertaking before acting. When the deputy acts, it is only because the supervisor is absent, unable to act, or the office is vacant. Even then, the deputy has no vote on town board matters and does not sit on the county board of supervisors.

Education Law §§ 2103(1) and 2112(3) make a town supervisor ineligible to serve as a school board member and automatically vacate a board seat upon acceptance of the supervisor's office. Town Law § 23(1) mirrors that ban in the opposite direction. Those provisions identify the supervisor specifically, not the deputy. Because fire districts, school districts, and similar special-purpose bodies have only the powers the Legislature gives them, and because the Legislature did not extend the supervisor bar to deputies, the AG's office concluded no statutory bar applied.

Citations and references

Statutes:

• N.Y. Education Law § 2103 (supervisor ineligible to serve on school board)
• N.Y. Education Law § 2112 (school board seat vacates on acceptance of supervisor's office)
• N.Y. Town Law § 23 (school district trustee ineligible to be supervisor)
• N.Y. Town Law § 29 (supervisor's fiscal duties)
• N.Y. Town Law § 42 (deputy town supervisor)
• N.Y. Town Law § 125 (town accounts and audits)

Prior AG opinions:

• 1966 Op Atty Gen (Inf) 81 (superseded by this opinion)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-29_pw.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

EDUCATION LAW §§ 2103(1), 2112(3); TOWN LAW §§ 23(1), 29, 42, 125.

There is no prohibition on a person serving as the president of a school board and as the deputy supervisor of a town.

September 16, 1996

Michael A. Yehl, Esq.
Town Attorney
Town of Westfield
Eason Hall
23 Elm Street
Westfield, NY 14787

Informal Opinion
No. 96-29

Dear Mr. Yehl:

You have asked whether a person may serve simultaneously as the deputy town supervisor and as president of the local school board. You have explained that a member of the town board has been appointed by the town supervisor to the position of deputy supervisor and has been elected by his or her colleagues as the president of the school board. In researching the question raised, you have found 1966 Op Atty Gen (Inf) 81, which concluded that under State law a member of a board of education may not also hold the position of deputy supervisor. You have asked that we reevaluate this issue.

Under section 2103(1) of the Education Law, no town supervisor is eligible to the office of trustee or member of a board of education. A trustee or a member of a board of education vacates his office by accepting the office of supervisor. Education Law § 2112(3). Section 23(1) of the Town Law also prohibits a trustee of a school district from being "eligible to the office of supervisor".

The town board may at any time establish the office of deputy supervisor. Town Law § 42. The deputy supervisor is appointed by and serves at the pleasure of the supervisor. Id. During the absence or inability of the supervisor to act or while the office of supervisor is vacant, the deputy supervisor presides at meetings of the town board and is vested with all of the powers and duties of the supervisor, except the deputy supervisor has no vote on matters coming before the town board and does not serve as a member of the county board of supervisors. Id. In the event that the office of supervisor becomes vacant, the deputy supervisor remains in office until his

or her successor is appointed by the new supervisor. Id. Any person, including a town official, may be appointed to the position of deputy supervisor provided that he or she possesses the same qualifications as an elected town officer. Id. Before performing any functions of the office, the deputy supervisor must take and file the constitutional oath of office and execute and file an official undertaking. Id.

In our view, there is no statutory bar on a deputy supervisor also serving as a member of a board of education. The statutory prohibitions only apply to the position of supervisor. The position of deputy supervisor is a separate and distinct office created by statute. Had the Legislature intended to prohibit a deputy supervisor from also serving on a board of education, it could easily have done so by referring to the specific office. Instead, the prohibitions refer only to the office of supervisor. We see no basis for extending specific statutory provisions to cover a separate town office, as defined under provisions of the Town Law. Further, we see no conflict or incompatibility between the duties of a member of a board of education and a deputy supervisor. The powers and duties of the supervisor which the deputy supervisor would perform in the event of a vacancy in the position of supervisor or where the supervisor is absent or unable to act relate to town fiscal matters. Town Law §§ 29, 125. The deputy supervisor has no right to vote on matters before the town board. We see no inevitable interaction between these duties and those of the president of a board of education. In instances where a town and a school district transact business, a person serving as deputy supervisor and on the board of education can remedy any potential conflict through recusal. Through this opinion, we supersede 1966 Op Atty Gen (Inf) 81.

We conclude that there is no prohibition against a person serving as the president of a school board and as the deputy supervisor of a town.

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