Can the same lawyer serve as a county assistant district attorney and as a member of a town's panel of special counsel that substitutes when the town, planning board, or zoning board attorneys are unavailable?

Subject

Compatibility of simultaneously serving as a Columbia County assistant district attorney (assigned to prosecute petty offenses and misdemeanors in the Town of Kinderhook) and as a member of a town panel of three special counsel substituting for the town attorney, planning board attorney, or zoning board attorney in case of conflict or other unavailability.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_96-43_pw.pdf

Plain-English summary

A Columbia County ADA, assigned to prosecute petty offenses and misdemeanors in Kinderhook Town Court, was also appointed to a three-member panel of "special counsel" set up by the town to take over from the town attorney, planning board attorney, or zoning board attorney when those primary attorneys had to recuse for conflicts. He asked whether holding both positions created an incompatibility.

The AG applied the People ex rel. Ryan v Green test: two offices are incompatible only when one is subordinate to the other or where the duties of the two offices are inherently inconsistent. Neither factor was present. As an ADA, the lawyer represented the People of the State of New York in the prosecution of petty offenses and misdemeanors. As a substitute town attorney or board counsel, he advised town civil bodies on legislative, land-use, and contract matters. There was no supervisory loop between the two.

The AG also pointed to a structural confirmation. Under County Law § 700(1) the district attorney conducts prosecution of all crimes and offenses in the county, but it has long been understood that the DA need not personally prosecute every offense (People v Van Sickle; People v Czajka). Petty offenses are routinely prosecuted by municipal attorneys, and Village Law § 20-2006 expressly authorizes a village attorney to be designated an ADA for prosecuting violations of village ordinances and local laws. That statutory pattern, the AG reasoned, demonstrates that the Legislature does not view local-municipal attorney work as inconsistent with ADA service. The compatibility holding for the Kinderhook panel followed by parallel reasoning.

The opinion also noted the standard caveat: even where two offices are compatible, a specific conflict can arise in a particular case, and the remedy is recusal in that case.

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 does "compatibility of office" require?
Under People ex rel. Ryan v Green, two offices are compatible unless (1) one is subordinate to the other, creating a "you cannot be your own boss" problem, or (2) the duties of the two offices are inherently inconsistent in a way that makes simultaneous service unworkable.

Why isn't an ADA who also drafts town legislation inherently conflicted?
Because the two roles touch different parts of the legal world. As ADA, the lawyer is appearing in court representing the People in criminal cases. As substitute town attorney or board counsel, he is advising elected officials and appointed board members on civil matters: drafting local laws, advising on contracts, defending zoning decisions. The Legislature has long treated these spheres as separable.

What if an issue overlaps, like prosecuting a violation of a town code the lawyer helped draft?
The AG flagged this kind of overlap as a per-case conflict to be handled by recusal. If the lawyer drafted a town code provision in his special-counsel role and that provision came up for criminal prosecution in his ADA role, he could recuse from that prosecution and have another ADA handle it. The Ryan v Green test only finds incompatibility when such conflicts are "inevitable," not merely "possibilities."

Are these positions both "public offices"?
The AG noted that the Ryan rule is technically about public offices but applies equally to combinations involving a position of employment or two positions of employment. So whether the special-counsel role is properly classified as an office or a contracted attorney role does not change the analysis.

Why does Village Law § 20-2006 matter here?
Section 20-2006 specifically permits a district attorney to designate a village attorney as an ADA for prosecuting violations of village ordinances and local laws. That statutory permission, in the AG's view, is a legislative endorsement of the pattern; the Legislature would not have created it if it considered village-attorney/ADA combinations inherently incompatible. Although the question here involved a town rather than a village, the AG drew the parallel.

Background and statutory framework

County Law § 700(1) makes the district attorney "the public prosecutor in his county" and requires the district attorney to conduct the prosecution of all crimes and offenses cognizable by the courts of the county. The provision is broad, but New York courts have read it to permit delegation. People v Van Sickle and People v Czajka, both decided by the Court of Appeals in the early 1960s, established that the DA need not personally appear at every prosecution; petty offenses and violations can be prosecuted by municipal attorneys acting with the DA's blessing.

That pattern is now widespread. In most small towns, the town attorney or town prosecutor handles violations of town code provisions in town court, working under a general designation from the DA. Some villages do the same under Village Law § 20-2006, which provides an express statutory designation mechanism.

A "panel" of special counsel like the one in Kinderhook is a relatively common conflict-management device for small towns whose primary attorneys often have substantial private practices. When the town attorney's firm represents one of the parties before the zoning board, the town attorney recuses and the panel member steps in for that matter. The arrangement keeps the town civil bodies properly counseled without forcing them to scramble for a substitute attorney each time a conflict surfaces.

Citations

• County Law § 700(1) (district attorney's prosecutorial responsibility)
• Village Law § 20-2006 (village attorney may be designated ADA for ordinance prosecutions)
• People ex rel. Ryan v Green, 58 NY 295 (1874) (compatibility-of-office test)
• People v Van Sickle, 13 NY2d 61 (1963) (DA may delegate prosecution)
• People v Czajka, 11 NY2d 253 (1962) (DA need not personally prosecute every offense)
• 1996 Op Atty Gen (Inf) No. 96-31

Original opinion text

COUNTY LAW § 700(1); VILLAGE LAW § 20-2006.
The positions of assistant district attorney and member of a panel of three special counsels (to substitute
for the town attorney, planning board attorney, or zoning board attorney in the event any are not
available to serve due to conflicts of interests or other disqualifications) are compatible.

December 31, 1996

Tal G. Rappleyea, Esq.
Special Counsel
Town of Kinderhook
112 State Street
Albany, NY 12207

Informal Opinion
No. 96-43

Dear Mr. Rappleyea:
You informed us that recently you were appointed as a member of a panel of three special counsels
serving in the Town of Kinderhook in Columbia County. Members of the panel will replace the town
attorney, planning board attorney or zoning board attorney when they are not available to serve due to
conflicts of interests or other disqualifications. You have indicated that you are also an assistant district
attorney in Columbia County and have been assigned to prosecute petty offenses and misdemeanors in
the Town of Kinderhook. Your inquiry is whether these two positions are incompatible.
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, in instances where the positions are
compatible, a conflict of interests may arise out of 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.
Returning to your inquiry, one position is not subordinate to the other, leaving us with the question as to
whether the duties of the two positions are inconsistent. Under section 700(1) of the County Law, the
district attorney has responsibility to conduct the prosecution of all crimes and offenses occurring in the
county. It has long been recognized, however, that the district attorney and his assistants need not
personally prosecute every offense committed within their jurisdiction. 1996 Op Atty Gen (Inf) No.
96-31; People v Van Sickle, 13 NY2d 61 (1963); People v Czajka, 11 NY2d 253 (1962). Under
arrangements made by the district attorney, petty crimes and offenses may be prosecuted by
administrative officers of a local government, including the attorneys for the local government. People v
Van Sickle, 13 NY2d 61, supra; People v Czajka, 11 NY2d 253, supra. It follows, therefore, that there is
no conflict of duties when a municipal attorney such as the town attorney, planning board attorney or
zoning board attorney is given the responsibility to prosecute violations of local laws in addition to their
regular municipal duties. Also, we note that under section 20-2006 of the Village Law a village attorney
may be designated by the district attorney as an assistant district attorney for purposes of prosecuting
violations of village ordinances and local laws. This provision illustrates that the Legislature did not
consider the duties of an assistant district attorney and a village attorney to be incompatible. A parallel
can be drawn to the town position in issue and the position of assistant district attorney with
responsibility for prosecuting petty offenses and misdemeanors in the town.
We conclude that compatibility exists as to the positions of assistant district attorney and member of a
panel of three special counsels, the purpose of which is to substitute for the town attorney, planning
board attorney, or zoning board attorney in the event any are not available to serve due to conflicts of
interests or other disqualifications.
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