Can a county legislator simultaneously serve as deputy supervisor of a town within the same county?

Plain-English summary

Schenectady County's Attorney asked whether a county legislator could also serve as a town's deputy supervisor.

The AG said yes. The relevant State statute (County Law § 411) bars an elective county officer from holding any other "elective county or town office." Deputy supervisor of a town is an appointive office, not elective. The position is filled by the town supervisor, or, if the supervisor fails to act, by the town board, under Town Law § 42. Because the deputy supervisor is appointed rather than elected, the County Law § 411 bar does not apply.

The opinion also explained the deputy supervisor's powers. The deputy presides at meetings of the town board and exercises the supervisor's powers in the supervisor's absence or during a vacancy, but the deputy cannot vote on matters before the town board and does not serve as a member of the county board of supervisors. If the office of supervisor becomes vacant, the deputy continues serving until a successor is appointed. The deputy is not a "successor" to the supervisor; the deputy simply performs the supervisor's duties when authorized to do so.

The AG concluded that the deputy supervisor position is structurally and statutorily distinct from the supervisor position and is appointive, not elective. The dual-officeholding bar in § 411 was not triggered.

Currency note

This opinion was issued in 1998. 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 does it matter whether the deputy supervisor is elected or appointed?

County Law § 411 prohibits an elective county officer from holding any other elective county or town office. The statute draws the line at elective offices on both sides; if either position is appointive, the bar does not apply. Other statutes and the common-law doctrine of incompatibility of office may still apply to appointive positions, but the specific County Law § 411 bar requires elective-on-elective.

Could the two roles still be incompatible under common-law incompatibility doctrine?

The opinion did not separately address that question. The 1998 opinion focuses only on § 411. A reader should be aware that even where the statutory dual-officeholding bar does not apply, the common-law test from People ex rel. Ryan v Green (subordinate or inherently inconsistent duties) could in principle preclude dual service. Whether that would apply to a county legislator and a town deputy supervisor depends on the specific duties involved.

How is a deputy supervisor selected?

Under Town Law § 42, the town supervisor appoints the deputy. If the supervisor fails to do so, the town board appoints the deputy. The appointment is at the discretion of the appointing authority and the deputy may be removed at the supervisor's discretion.

Does the deputy supervisor vote on town board matters?

No. Town Law § 42 expressly excludes the deputy supervisor from voting at town board meetings, even while presiding in the supervisor's absence. The deputy can call meetings to order, run the agenda, and exercise other supervisor functions, but cannot cast a vote.

Does the deputy supervisor become the supervisor automatically if the supervisor's office becomes vacant?

No. The deputy continues to perform supervisor duties until a successor is appointed, but the deputy does not "succeed to" the supervisor position. The vacancy is filled under the procedures applicable to town supervisor vacancies (typically by town board appointment or special election).

Background and statutory framework

County Law § 411 is the dual-officeholding bar for elective county officers. It is part of a broader scheme of incompatibility rules scattered across Public Officers Law, County Law, Town Law, and Village Law. The statute targets elective-on-elective combinations and leaves appointive offices to be analyzed under other provisions.

Town Law § 42 is the deputy supervisor statute. It authorizes the supervisor to appoint a deputy, provides for town board appointment if the supervisor fails to do so, defines the deputy's role during the supervisor's absence or a vacancy, and provides that the deputy does not serve as a member of the county board of supervisors. The provision was drafted to allow continuity in supervisor functions without giving the deputy actual supervisor authority on the county side.

Citations

• County Law § 411 (bar on elective county officer holding other elective county or town office).
• Town Law § 42 (deputy supervisor position: appointment, powers, limits).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-6_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Page 1 of 1

Opn. No. 98-6
COUNTY LAW § 411; TOWN LAW § 42.
A member of the county legislature may also serve as a deputy supervisor of a town within the county. February 9, 1998 Informal Opinion No. 98-6

Thomas B. Hayner, Esq.
County Attorney
County of Schenectady
County Office Building
620 State Street
Schenectady, NY 12305-2114
Dear Mr. Hayner:
You have asked whether a county legislator may also hold the position of deputy supervisor of a town in the county. The State Legislature has regulated dual office-holding by county legislators. Under section 411 of the County Law, an elective county officer is ineligible to also hold any other "elective county or town office". The position of deputy supervisor is appointive and, therefore, does not fall within this provision. Town Law § 42. The deputy supervisor is appointed by the supervisor or, upon his failure to appoint, by the town board. Id. During the absence of the supervisor, if he is unable to serve or during a vacancy in the position of supervisor, the deputy supervisor presides at meetings of the town board and has the powers of the supervisor except the power to vote in matters before the town board. Id. Also, the deputy supervisor does not serve as a member of the county board of supervisors. Id. In the event the office of supervisor becomes vacant, the deputy supervisor continues serving until a successor has been appointed. Therefore, it is clear that the deputy supervisor does not succeed to the position of supervisor. The deputy performs the duties of supervisor as authorized by section 42. The position of deputy supervisor is an appointive office and does not fall within the prohibition of section 411 of the County Law. We conclude that a member of the county legislature may also serve as a deputy supervisor of a town within the county. 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