Can the same person serve as both the village's volunteer fire chief and its fire marshal in New York?

Plain-English summary

Counsel to the Village of Southampton asked whether one person could serve as both volunteer fire chief and village fire marshal. The AG concluded the two positions were incompatible on the Southampton facts.

The starting point was the People ex rel. Ryan v. Green common-law incompatibility test: two offices are incompatible if one is subordinate to the other, or if there is an inherent inconsistency between their duties. The AG also noted Dupras v. County of Clinton, which extends the doctrine to employment positions, not just offices.

In Southampton, the fire marshal performed the duties of the fire inspector under Village Code § 59-9, including investigating "the cause, origin and circumstances of every fire occurring in the village which is of suspicious nature or which involves a loss of life." Crucially, a follow-up letter from village counsel confirmed that § 59-9 also gave the fire marshal authority to investigate "whether the Fire Department and Fire Chief responded and handled the fire in an appropriate manner."

The fire chief's primary duty was overseeing the extinguishing of fires. The AG had previously held in Op Atty Gen (Inf) No. 86-28 (chief engineer + town fire inspector) and Op Atty Gen (Inf) No. 90-6 (paid firefighter + assistant town fire inspector) that fire inspectors could compatibly hold a separate firefighting position where the inspector's duties did not include review of fire department activities. The Southampton fire marshal's role was different: it expressly reviewed the chief's conduct.

The AG quoted O'Malley v. Macejka: incompatibility exists "when there is a built-in right of the holder of one position to interfere with that of the other, as when one is subordinate to, or subject to audit or review by, the second." Holding both posts would frustrate the very purpose of having one act as a check on the other. The AG also cited Op Atty Gen (Inf) No. 98-44 (fire inspector / building inspector incompatible where one reviews permits issued by the other) for the same principle. The two Southampton positions therefore could not be held by the same person.

Currency note

This opinion was issued in 2000. 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

Could the village ordinance be rewritten to avoid the conflict?

In principle, yes. The incompatibility here turned on the specific Southampton Village Code provision that placed review of the fire chief's response in the fire marshal's duties. A village that defined the fire marshal's role to exclude review of the fire department's response could reach a different conclusion. The AG's two prior opinions (86-28 and 90-6) illustrated the compatible structure.

What if the fire chief recused himself from any review of his own response?

The AG analyzed recusal in passing, citing Kastoff for the principle that conflict can sometimes be cured by declining to participate. But where the conflict is structural (review of the other position is in the job description), recusal cannot solve the incompatibility. The marshal's review function existed regardless of which fires triggered it.

Does this apply to fire districts as well as villages?

The opinion's reasoning was structural: any setup where the holder of one position reviews the other's conduct produces incompatibility. The same logic should apply to fire district arrangements. The AG cited fire district opinions in its compatibility precedents.

What does an O'Malley v. Macejka "built-in right to interfere" look like?

It can take several forms: direct supervision, the power to audit, investigative review, the power to issue permits the other holder needs. The Court in O'Malley emphasized that the design that one act as a check on the other is the structural cue.

Background and statutory framework

The compatibility analysis here did not turn on any state statute specific to fire chiefs or fire marshals. Instead, the AG applied the People ex rel. Ryan v. Green doctrine in the form developed in O'Malley v. Macejka, which articulated the "built-in right to interfere" formulation.

Southampton Village Code § 59-9 was the local ordinance defining the fire marshal/fire inspector role. The fire marshal investigated the cause, origin, and circumstances of suspicious fires and fires involving loss of life, and (per the supplemental letter) reviewed how the fire department and fire chief responded to fires.

Dupras v. County of Clinton confirmed the doctrine applies to employment positions, not just public offices. Kastoff confirmed recusal can sometimes cure issue-specific conflicts, but the AG's prior opinions and O'Malley both make clear that structural review conflicts cannot be cured by avoidance.

Citations

• Southampton Village Code § 59-9 (fire marshal/fire inspector duties).
• People ex rel. Ryan v. Green, 58 N.Y. 295 (1874) (common-law incompatibility test).
• O'Malley v. Macejka, 44 N.Y.2d 530 (1978) (built-in right to interfere; design that one act as a check on the other).
• Dupras v. County of Clinton, 213 A.D.2d 952 (3d Dep't 1995) (incompatibility doctrine applies to employment positions).
• Matter of Kastoff v. N.Y. State Dep't of Soc. Svcs., 195 A.D.2d 808 (3d Dep't 1993) (recusal may cure compatible-but-conflicted situations).
• Op Atty Gen (Inf) No. 86-28 (fire chief engineer compatible with town fire inspector where inspector did not review fire department).
• Op Atty Gen (Inf) No. 90-6 (paid firefighter compatible with assistant town fire inspector on similar facts).
• Op Atty Gen (Inf) No. 98-44 (fire inspector and building inspector incompatible where one reviews the other's permits).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2000-20_pw.pdf

Original opinion text

Opn. No. 2000-20
SOUTHAMPTON VILLAGE CODE §59-9.
The specific duties of the positions of Fire Marshal and Fire Chief in the Village of Southampton make
these positions incompatible so that the same person may not simultaneously serve in both positions.
November 14, 2000
Vincent Toomey, Esq.
Counsel
Village of Southampton
3000 Marcus Avenue
Lake Success, NY 11042

Informal Opinion
No. 2000-20

Dear Mr. Toomey:
You have asked whether a person may serve simultaneously as Volunteer Fire Chief and Fire
Marshal.
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
offices is People ex rel. Ryan v. Green, 58 N.Y. 295 (1874). In that case the Court held that two offices
are incompatible if one is subordinate to the other or 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. See Dupras v. County of Clinton,
213 A.D. 2d 952, 953 (3d Dep't 1995). Also, where positions are compatible, a conflict of interest
nevertheless may arise out of the simultaneous holding of the positions. The conflict may be avoided by
declining to participate in the disposition of the particular matter. See Matter of Kastoff v. N.Y. State
Dep't of Soc. Svcs., 195 A.D. 2d 808, 809 (3d Dep't 1993).
You have informed us that in the Village of Southampton the Fire Marshal performs the duties of
the Fire Inspector. Under section 59-9 of the Southampton Code, the Fire Inspector investigates "the
cause, origin and circumstances of every fire occurring in the village which is of suspicious nature or
which involves a loss of life."
You have also informed us that the Fire Chief in the Village of Southampton has the primary duty
of overseeing the extinguishing of fires. He is not the direct supervisor of the Fire Marshal. Instead, the
Fire Marshal receives assignments from an administrative superior. In a subsequent letter, you informed
us that section 59-9 of the Village Code gives the Fire Marshal responsibility to investigate "whether the
Fire Department and Fire Chief responded and handled the fire in an appropriate manner." October 31,
2000 supplemental letter.

This office has previously opined that one could simultaneously serve as chief engineer of a fire
department of a fire district, and as town fire inspector. See Op Atty Gen (Inf) No. 86-28. We reasoned
that although the fire inspector's duties included the inspection of structures in the process of
construction or repair for compliance with fire safety requirements, and the investigation of actual fires
and fire hazards, the inspector's duties did not include review or investigation of fire department
activities.
This office has also previously opined that one could simultaneously serve as a full-time paid
firefighter employed by a fire district in the town, and as part-time assistant town fire inspector. See Op
Atty Gen (Inf) No. 90-6. We reasoned that the fire inspector's duties included enforcing regulations
relating to: the construction and maintenance of buildings, the storage of materials, the undertaking of
activities posing a risk of fire, activities posing a risk of fire, and public safety and access in the event of
a fire. These duties did not include reviewing or investigating the activities of a fire department of a fire
district. Therefore, the duties of the paid firefighter and the assistant town fire inspector were
independent of one another, and compatible.
The above opinions were based on the specific duties of the fire inspector in each municipality.
The duties of the fire inspector did not involve review of the duties of the other position held by the
inspector. By contrast, in the Village of Southampton the Fire Marshal's responsibilities can include
review of the duties of the Fire Chief. "Incompatibility has been said to exist when there is a built-in
right of the holder of one position to interfere with that of the other, as when one is subordinate to, or
subject to audit or review by, the second. Obviously, in such circumstances, were both posts held by the
same person, the design that one act as a check on the other would be frustrated." O'Malley v. Macejka,
44 N.Y.2d 530, 535 (1978) (emphasis supplied; citations omitted). Accord Dupras, 213 A.D.2d at 953.
Thus, positions are incompatible where the holder of one position is empowered to review decisions
made by the holder of the other position. See Op Atty Gen (Inf) No. 98-44 (fire inspector may be
reluctant to attribute fire to a violation of the fire and building code, where in his separate position as
building inspector he issued a permit allowing occupancy of the building; hence positions are
incompatible). Here, there is an inherent inconsistency between the positions of Fire Marshal and Fire
Chief, because the Fire Marshal may investigate or review actions taken by the Fire Chief.
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,
David Lawrence III
Assistant Solicitor General
cc: Department of Motor Vehicles
Office of Legal Affairs

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