Can one person hold both the office of county manager and the office of county treasurer?

Plain-English summary

Lewis County's Attorney asked whether one person could hold both the office of county treasurer and the office of county manager.

The AG said no. The two positions are incompatible.

The county treasurer is the county's chief financial officer. For the county described in the request, the treasurer handled payroll, property tax foreclosures, voucher review, payments after legislative approval, and custody of county funds.

The county manager implements the policies of the county legislature. Duties described in the request include coordinating administrative functions across county departments, serving as liaison between the legislature and the departments, recommending department heads, transferring employees between departments, defining officer powers (with appointing authority approval), coordinating fiscal affairs, preparing and administering the budget, and establishing budgetary controls.

The structural problem is obvious. The county manager has supervisory authority over the administrative functions of the departments, including the treasurer's office. The manager manages appropriated funds and establishes budgetary controls. That puts the treasurer functionally subordinate to the manager. One of the two main People ex rel. Ryan v Green incompatibility tests (the "you cannot be your own boss" subordination test) is satisfied directly.

The deeper concern is fiscal checks and balances. The county legislature established the two positions to perform different functions: the manager runs day-to-day operations and budget administration; the treasurer is the independent custodian of funds and the gatekeeper for payments. Putting both functions in one person collapses the structure the legislature put in place. The AG concluded that the two positions "should not be held by the same individual" because "[t]o hold otherwise would tend to erode fiscal checks and balances established by the county legislature."

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 are these two positions incompatible?

The opinion says the treasurer is subordinate to the county manager. The manager supervises county departments' administrative functions, including the treasurer's office, and manages appropriated funds and budgetary controls. Combining the roles would erode the fiscal checks and balances the county legislature established.

What test did the AG apply?

The opinion cites People ex rel. Ryan v Green for two grounds of incompatibility: one office is subordinate to the other, or the duties of the two offices are inherently inconsistent. It found both in the positions described by Lewis County.

Can an ordinary conflict be handled by recusal?

The opinion says a particular conflict of interest can arise even when two positions are compatible, and declining to participate in that matter can avoid it. Here the AG found the positions themselves incompatible, so it did not treat recusal as a solution.

Did the opinion decide how to change the county's office structure?

No. It does not discuss a charter amendment, special act, resolution, or any other method of changing these offices. It concludes only that the manager and treasurer positions described are incompatible.

Background and statutory framework

The opinion states that, absent a constitutional or statutory prohibition, a person may hold two offices unless they are incompatible. It applies the subordination and inconsistent-duties tests from People ex rel. Ryan v Green to the duties Lewis County described. It adds that compatibility principles also cover an office and an employment position, or two employment positions.

Citations

• People ex rel. Ryan v Green, 58 NY 295 (1874) (leading case on compatibility of office; subordination and inherent-inconsistency tests).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-22_pw.pdf

Original opinion text

The positions of county manager and county treasurer are incompatible.

May 19, 1998
Kevin M. McArdle, Esq.
County Attorney
County of Lewis
P. O. Box 128
Lowville, NY 13367-0128

Informal Opinion
No. 98-22

Dear Mr. McArdle:
You have inquired whether a person may hold the positions of county treasurer and county manager. 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 the principle equally covers an office and a position of employment or two positions of employment. Also, where positions are compatible, a conflict of interests may arise out of the simultaneous holding of the positions. The conflict can be avoided by declining to participate in the disposition of the particular matter. In our view, the two positions are incompatible. The county treasurer is subordinate to the county manager and the duties of the two positions conflict. In a recent telephone conversation, you informed us that the treasurer is the chief financial officer of the county. Specifically, the treasurer and his staff are responsible for the payroll and property tax foreclosures. The treasurer reviews vouchers submitted by persons providing supplies and services to

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the county and, after approval by the county legislative body, makes payments to these persons. Generally, the treasurer is custodian of county funds. Generally, the duties of the county manager, as described in your letter, are to implement the programs and policies of the county legislature and to promote efficiency and economy in county government. The manager, as authorized by the legislature, executes and enforces local laws and other legislative directives and develops administrative procedures consistent with these authorizations. Significantly, as set forth in your inquiry, the county manager is responsible for and coordinates the administrative functions of the departments of county government and serves as the liaison between the county legislature and these departments. Also, the county manager recommends to committees of the legislature candidates to head county departments. With the approval of the appointing authority, the manager may transfer employees between departments and define the powers of officers. The manager also coordinates the fiscal affairs of departments of county government, is the budget officer responsible for preparation and administration of the budget, and establishes budgetary controls to manage efficiently appropriated funds. It seems clear that the position of county treasurer is subordinate to the position of county manager. The manager is responsible for coordinating and supervising administrative functions on behalf of the county legislature, which would include the functions of the office of treasurer. Further, the manager has responsibility for management of appropriated funds and establishment of budgetary controls. As authorized by the legislature, the manager administers support services for the various units of county government, including the installation, operation and maintenance of data processing equipment, equipment for reproduction of materials and processing of mail. In this role, the manager supervises all personnel. The role of the treasurer is subordinate to that of the county manager, and the two positions should not be held by the same individual. To hold otherwise would tend to erode fiscal checks and balances established by the county legislature. We conclude that the positions of county manager and county treasurer are incompatible.

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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