Can a New York town clerk also serve as a fire district commissioner for a fire district inside that town?

Plain-English summary

The elected Town Clerk of East Hampton wanted to also serve as a fire district commissioner for a fire district located entirely inside the town. The Springs Fire District attorney asked the AG whether the combination was lawful.

The AG concluded yes. The reasoning runs through both layers of compatibility analysis.

Statutory bar: none. Town Law § 20(4) prohibits a person from holding more than one elective town office, but a fire district is a separate political subdivision from the town under Town Law § 174(7) and General Construction Law § 66. The fire district office does not count as a town office for § 20(4) purposes. Town Law § 174(4) imposes some restrictions on dual office holding by fire district officers, but those restrictions do not reach the town clerk position.

Under People ex rel. Ryan v Green, neither position is subordinate to the other because they are in separate legal entities. The AG found no foreseeable conflict between their duties and no intersection apart from filing the commissioner's oath of office.

Town Law § 174(6) requires a fire district commissioner to file an oath of office with the town clerk. The AG did not see that filing as a conflict, but noted that late filing would create a vacancy under Public Officers Law § 30(1)(h). Because East Hampton had at least one deputy town clerk, the AG advised filing the oath with the deputy to avoid questions about timeliness.

Currency note

This opinion was issued in 1999. 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 is a fire district considered a separate political subdivision?

The AG cited Town Law § 174(7) and General Construction Law § 66 for the point that a fire district is a political subdivision separate from the town. That is why the fire commissioner position is not a second elective town office under Town Law § 20(4).

What if there's no deputy town clerk?

The AG was told East Hampton had at least one deputy town clerk and recommended filing the commissioner's oath with that deputy. It did not decide how a town without a deputy should handle the filing.

Could a town clerk be elected as a town supervisor or town board member at the same time?

The opinion says Town Law § 20(4) prohibits holding more than one elective town office. It does not separately analyze a town clerk serving as supervisor or board member.

What other fire district roles might combine with town clerk?

The AG cites an earlier opinion finding town assessor and fire district commissioner compatible. It does not decide other combinations of fire district and town offices here.

Does the same compatibility analysis work for a village clerk and a fire district commissioner?

The opinion addresses an elected town clerk and a commissioner of a fire district wholly within the town. It does not analyze a village clerk.

Background and statutory framework

The AG relied on the fire district's status as a political subdivision separate from the town and found neither office subordinate to the other.

The AG cited Town Law § 30 for town clerk duties and § 176 for fire commissioner duties. The filing of the commissioner's oath under § 174(6) was the only intersection of duties it identified.

For East Hampton, the AG recommended filing the commissioner's oath with the deputy town clerk to avoid questions about timely filing.

Citations

• General Construction Law § 66 (definitions of public corporations).
• Public Officers Law § 30(1)(h) (failure to file oath creates vacancy).
• Town Law § 20(4) (restrictions on dual elective town offices).
• Town Law § 30 (town clerk duties).
• Town Law § 174 (fire district structure).
• Town Law § 174(4) (fire district officer dual-office restrictions).
• Town Law § 174(6) (fire district commissioner oath filing requirement).
• Town Law § 174(7) (fire district as separate political subdivision).
• Town Law § 176 (fire commissioner powers and duties).
• People ex rel. Ryan v Green, 58 NY 295 (1874) (compatibility test).
• Op Atty Gen (Inf) No. 92-25 (town assessor / fire district commissioner compatible).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_99-40_pw.pdf

Original opinion text

Opn. No. 99-40
GENERAL CONSTRUCTION LAW § 66; PUBLIC OFFICERS LAW § 30(1)(h); TOWN LAW §§ 30, 174, 176. The positions of town clerk and fire district commissioner are compatible. December 30, 1999 John P. Courtney, Esq. Springs Fire District Attorney P.O. Box 720 Amagansett, New York 11930

Informal Opinion
No. 99-40

Dear Mr. Courtney:
You have inquired whether a person may serve simultaneously as elected Town Clerk of the Town of East Hampton and as a member of a Board of Fire Commissioners for a fire district located wholly within that Town. We conclude that there is no incompatibility between these two positions. You note that Town Law § 174(6) requires that a fire district commissioner's oath of office be filed with the town clerk. In a telephone conversation, you further advised us that the Town has at least one Deputy Town Clerk. First, we have found no statute prohibiting the concurrent holding of these two offices. Section 20 (4) of the Town Law imposes some restrictions on dual office holding by elected town officers. These restrictions prohibit a person from holding more than one elective town office. This provision does not apply here because a fire district is a political subdivision separate from a town. See Town Law § 174 (7); General Construction Law § 66. Town Law § 174(4) imposes restrictions on dual office holding by fire district officers, but does not bar such officers from being town clerk. Thus, the State Legislature has not prohibited an individual from simultaneously holding the positions of town clerk and fire district commissioner. Second, the two offices are not incompatible under common law principles. In the absence of a constitutional or statutory prohibition against dual office holding, 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 of Appeals held that two offices are incompatible if one is subordinate to the other or if there is an inherent inconsistency between the duties of the two offices. The powers and duties of fire district commissioners are set forth in Town Law § 176. The duties of a town clerk are set forth in Town Law § 30. One position is not subordinate to the other because they are within separate legal entities. Moreover, there is no foreseeable conflict between the duties of the two positions. See, Op Atty Gen (Inf) No. 92-25 (positions of town assessor and fire district commissioner compatible). With the exception of the filing of the fire district commissioner's oath of office, which we do not view as a source of conflict, we foresee no intersection of the duties of the two offices. Town Law § 174(6) requires that a fire district commissioner file his oath of office with the town clerk. The failure to file the oath in a timely manner would result in a vacancy in the office of fire district commissioner. Public Officers Law § 30(1)(h). To avoid any questions regarding the timeliness of the filing of the fire commissioner's oath of office, the oath should be filed with the deputy town clerk. 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, WILLIAM E. STORRS Assistant Solicitor General