In New York, can the same person serve as both a town supervisor and the mayor of a village within that town?

Plain-English summary

The Town of Diana asked whether a newly elected town supervisor could also continue to serve as mayor of a village within the town. The Attorney General's office answered with a qualified yes: the supervisor could continue as mayor until the town's budget process began, at which time the opinion said he or she would have to resign.

The reasoning came from a chain of prior opinions, most prominently Op Atty Gen (Inf) No. 90-36, that found the offices of town board member and village trustee incompatible. Under Highway Law § 277, when a town puts together its budget it has to decide annually, under Highway Law § 141(3) and (4), whether village property should be exempted from certain town highway taxes. That decision pits the town's interest against the village's, so the same person cannot legitimately sit on both sides of it. Since the conflict only fires once a year, the AG's office had concluded in the analogous trustee case that the dual-officer could keep both seats until the budget process began. The 1998 opinion extended the same logic to a town supervisor who was also a village mayor.

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

Q: What does "compatible" and "incompatible" mean for public offices? A: In this opinion, incompatibility concerns the town board's annual determination of whether village property may be exempted from certain highway taxes. The AG's office had found town board member and village trustee incompatible because that budget decision requires balancing town and village interests.

Q: Why did the conflict trigger at the start of the town's budget process? A: That is when the town board has to decide which village property is exempt from town highway taxes for the coming year, under Highway Law § 141(3) and (4) and § 277. The decision substantially affects village taxpayers. Before the budget process starts, there is no concrete conflict.

Q: Did the AG's office tell the supervisor what to do when the budget process begins? A: Yes. It said the supervisor could continue as mayor until that point: "At that time, he or she would have to resign." The opinion does not discuss choosing between the two offices.

Q: Did the opinion address an agreement between the town and village? A: No. It analyzed the two offices and the town's annual budget determination; it gave no guidance on an agreement or informal accommodation.

Q: Does this opinion apply if the town supervisor is not also a town board member? A: The town supervisor is a member of the town board under Town Law § 60-a, so the supervisor's role automatically participates in the budget process. The conflict the AG identified attached to the budgetary functions of the town board.

Background and statutory framework

In New York, the town supervisor is a member of the town board (Town Law § 60-a), and the village mayor is a member of the village board of trustees (Village Law § 3-301(4)). The town board prepares the annual town budget. Under Highway Law § 277, that process includes a determination, made each year under Highway Law § 141(3) and (4), about whether property within incorporated villages should be exempted from certain town highway taxes. That determination directly affects village taxpayers.

The earlier opinion cited as No. 90-36 and other cited opinions had recognized that this annual decision creates a substantial and inevitable conflict between town and village interests. The conflict made the offices incompatible. The AG's office had also recognized that the conflict is concentrated in time. As a result, the dual officeholder in the earlier opinion could complete a village trustee term that ended before the budget process began. This opinion applied that timing to a town supervisor who was also a village mayor.

Citations and references

Statutes:

• N.Y. Town Law § 60-a (supervisor is town board member)
• N.Y. Village Law § 3-301 (village officers)
• N.Y. Highway Law § 141 (village property exemptions from town highway taxes)
• N.Y. Highway Law § 277 (town highway tax assessments)

Prior AG opinions:

• Op Atty Gen (Inf) No. 90-36 (incompatibility of town board member and village trustee positions)
• 1980 Op Atty Gen (Inf) 119, 158

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-24_pw.pdf

Original opinion text

TOWN LAW § 60-a; VILLAGE LAW § 3-301(4). A recently elected town supervisor may continue to serve as mayor of a village in the town until the commencement of the town's budgetary process.

May 21, 1998
Kevin M. McArdle, Esq.
Town Attorney
Town of Diana
P. O. Box 128
Lowville, New York 13367

Informal Opinion
No. 98-24

Dear Mr. McArdle:
You have asked whether a recently elected town supervisor may continue to serve as the mayor of a village in that town for a period of time not extending beyond the commencement of the town's budgetary process. The town supervisor is a member of the town board, the legislative body of the town. Town Law § 60-a. The mayor is a member of the village board of trustees, the legislative body of the village. Village Law § 3-301(4). You have referred to Op Atty Gen (Inf) No. 90-36, in which we referenced prior opinions of this office finding that the positions of town board member and member of a village board of trustees are incompatible. We based this finding on the fact that under section 277 of the Highway Law, in the preparation of the town budget the town board must annually determine whether real property in the village may be exempted from taxes for certain highway purposes (see, Highway Law,
§ 141[3], [4]). While this balancing of interests of the village and the town will occur only once a year, it is inevitable and substantial. The town budgetary process consumes considerable time and the impact of the town board's decision upon the taxes of the village and the town can be substantial. See also, 1980 Op Atty Gen (Inf) 119, 158. In that opinion, however, we decided that the recently elected town board member could complete his term as village trustee

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because it ended prior to the commencement of the town budgetary process. Similarly, we believe that your town supervisor may continue to serve as mayor until the commencement of the town budgetary process. At that time, he or she would have to resign. We conclude that a recently elected town supervisor may continue to serve as mayor of a village in the town until the commencement of the town's budgetary process. 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