Can a New York town highway superintendent also serve on the board of a public hospital jointly owned by two towns including his own?

Plain-English summary

Clifton-Fine Hospital, a public hospital created under General Municipal Law Article 6, is jointly owned by the towns of Clifton and Fine. The hospital is in Fine. The board of managers has eight members, four appointed by each town. The Town of Fine wanted to appoint its highway superintendent to one of its slots. The towns' attorney asked the AG whether the highway superintendent could serve on the board.

The AG concluded the offices were compatible. The highway superintendent is an elected town officer responsible for the repair and maintenance of town highways and bridges (Highway Law § 140; Town Law § 32). Highway budget approval rests with the town board, which reviews the superintendent's annual estimate (Town Law §§ 104, 106(3)-(4)). The hospital board, under General Municipal Law § 128, handles hospital-related matters: erecting and repairing hospital buildings, providing patient care, appointing and removing physicians, and supervising the hospital generally. The two domains don't overlap structurally.

Town Law § 20(4) doesn't apply because hospital board membership is appointive. There is no other constitutional or statutory bar. Neither office is subordinate to the other; neither reviews the other's decisions.

Some practical overlap was possible. The town could in theory assign the highway superintendent additional duties under Town Law § 32(1), including hospital snow removal or parking lot maintenance (Op. State Compt. No. 79-367). The hospital board could also request town highway services for the hospital grounds. The AG flagged the budget-competition issue (both budgets compete for town funds, see Op. Atty. Gen. (Inf.) No. 94-43) but noted that the superintendent would be one of several hospital board members, not the sole decision-maker.

The recommended caution: if a hospital matter involves a request for town highway services, the highway superintendent should recuse from the hospital board vote to avoid divided loyalties.

Currency note

This opinion was issued in 2003. 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: How is the hospital board structured?
A: Under General Municipal Law § 128, eight members for a jointly-owned hospital. The Clifton-Fine board had four members appointed by each town. Members serve without compensation under § 127(3) and meet at least monthly under § 128(6). The board has authority over hospital buildings, patient care, physician appointments, and overall hospital supervision.

Q: Why is the budget overlap concern mitigated here?
A: Because the highway superintendent is only one of several hospital board members. He doesn't unilaterally control the hospital budget. He also doesn't control the highway budget (the town board does, on his estimate). Competing budget pressures exist, but no single individual is on both sides of the equation.

Q: When should the highway superintendent recuse from hospital board matters?
A: When the hospital board votes on a request for town highway services (snow removal of hospital parking lots, road repairs leading to the hospital). The superintendent has decision authority on the town side, and could be seen as having divided loyalties when voting on the request from the hospital side.

Q: Could the town board lawfully assign the highway superintendent to handle hospital grounds maintenance?
A: Yes, under Town Law § 32(1), if the duties don't conflict with his other duties or are not otherwise impractical. State Comptroller Op. No. 79-367 had addressed this exact scenario for a town hospital's parking lot. The town board would have to approve and the expense would generally be chargeable to the highway fund.

Q: What if both budgets exceed available town funds?
A: That decision is made by the town board, not by the highway superintendent or hospital board. Each entity submits its proposed budget and the town board allocates. The structural separation of decisionmakers reduces the conflict to a manageable level.

Background and statutory framework

General Municipal Law Article 6 governs public hospitals. Section 126-a covers hospitals jointly owned by two towns; expenses are apportioned based on the ratio of assessed value. Section 127(3) makes board members uncompensated. Section 128 lists the board's duties and powers.

Highway Law §§ 140 and 141 set the highway superintendent's duties and the structure of the annual budget estimate, with categories for highway and bridge repair, equipment, and snow removal. Town Law § 32 sets out the superintendent's general duties and authorizes the town board to assign further duties not inconsistent with law. Town Law § 104 and § 106 govern the town board's review and approval of the highway estimate.

The compatibility test is the standard New York framework: People ex rel. Ryan v. Green and O'Malley v. Macejka. Two positions are incompatible only if one is subordinate to the other or there is inherent inconsistency. Hospital and highway operations have no subordination relationship, and the substantive overlap (potential snow removal requests) is narrow enough to be handled by recusal.

Citations and references

Statutes:

• Highway Law § 140 (highway superintendent duties)
• Highway Law § 141 (highway budget categories)
• General Municipal Law § 126-a (jointly owned public hospitals)
• General Municipal Law § 127(3) (uncompensated board service)
• General Municipal Law § 128 (board of managers duties)
• Town Law § 20(4) (multiple elective town offices)
• Town Law § 27 (salary in lieu of fees)
• Town Law § 32 (highway superintendent further duties)
• Town Law § 104 (highway budget submission)
• Town Law § 106 (highway estimate review)

Cases:

• O'Malley v. Macejka, 44 N.Y.2d 530 (1978)
• People ex rel. Ryan v. Green, 58 N.Y. 295 (1874)
• Matter of Dupras v. County of Clinton, 213 A.D.2d 952 (3d Dep't 1995)

Prior AG and Comptroller opinions:

• Op. Atty. Gen. (Inf.) No. 94-43 (competing budget responsibilities)
• Op. State Compt. No. 79-367 (highway superintendent and hospital parking lot maintenance)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2003-6_pw.pdf

Original opinion text

HIGHWAY LAW §§ 140, 141; GENERAL MUNICIPAL LAW, ART. 6, §§ 126-a, 127(3), 128; TOWN LAW §§ 20(4), 32, 104, 106.

One person may simultaneously hold the elected office of superintendent of highways of a town and the appointed position of member of the board of managers of a public hospital, jointly owned by such town and another town.

July 15, 2003

Marcia L. LeMay, Esq.
Attorney for the Towns of Clifton and Fine
Nash, Palm & LeMay
113 Main Street
P.O. Box 529
Canton, New York 13617

Informal Opinion
No. 2003-6

Dear Ms. LeMay:

You have asked whether the same person may simultaneously hold the elected office of Town of Fine Highway Superintendent and the appointed position of member of the Board of Directors of the Clifton-Fine Hospital (the "Hospital"), a public hospital established pursuant to Article 6 of the General Municipal Law, which is jointly owned by the Towns of Clifton and Fine. In a telephone conversation you advised that: the Hospital is located within the Town of Fine; the Hospital Board consists of eight members, four appointed by each town; the Highway Superintendent's contemplated appointment to the Hospital Board would be by the Town of Fine; and the Superintendent is not a member of either town's board. You have also indicated that the Hospital handles its own snow removal and similar grounds-related duties. Under these circumstances, we conclude that one person may simultaneously hold both offices.

Discussion

In the absence of a constitutional or statutory prohibition, one person may hold two offices simultaneously unless they are incompatible. Two offices are incompatible if one is subordinate to the other or if there is an inherent inconsistency between the two offices. See O'Malley v. Macejka, 44 N.Y.2d 530, 535 (1978); People ex rel. Ryan v. Green, 58 N.Y. 295, 304-305 (1874); Matter of Dupras v. County of Clinton, 213 A.D.2d 952, 953 (3d Dep't 1995). Furthermore, even if the positions are compatible, a specific situation may arise where a conflict of interest is created by the simultaneous holding of the two positions. In such a situation, the conflict is avoided by declining to participate in the disposition of the matter. However, if such situations will arise frequently, the positions would be inherently inconsistent.

We have not identified any per se constitutional or statutory prohibition on one person holding the offices in question. Nor is one office subordinate to the other. The actions of the town superintendent of highways and member of a public hospital's board of managers are not reviewable by one another. Therefore, the key question is whether there is an inherent inconsistency between the duties of the two positions. We find none under the facts of this case.

As a general matter, the duties of the two positions are unrelated. General Municipal Law § 128 sets forth the duties of the board of managers of a public hospital, including one, as here, jointly owned by two towns. See General Municipal Law § 126-a. They concern hospital-related matters only, and include: erecting, improving, and repairing hospital buildings, id. § 128(2); providing for patient care, id. § 128(4); appointing and removing physicians, id.; and "hav[ing] the general superintendence, management and control of the said hospital and of the grounds, buildings, officers, employees and inmates thereof," id. § 128(5). Budget approval rests with the governing town boards, and, in this regard, the hospital board submits an annual report, detailing proposed expenses. See id. § 128(9). Where a public hospital is jointly owned by two towns, its expenses are ordinarily apportioned between the towns based on "the ratio of the assessed value of each . . . town . . . to the whole." Id. § 126-a. Hospital board members receive no compensation, id. § 127(3), and must meet at least once a month, id. § 128(6).

These duties do not appear to conflict with the delineated statutory duties of a town highway superintendent, who is generally responsible for the repair and maintenance of town highways and bridges. See Highway Law § 140; Town Law § 32. Highway budget approval rests with the town board, which reviews the annual estimate submitted by the superintendent. See Town Law §§ 104, 106(3) & (4). The categories comprising the highway superintendent's annual budget estimate are prescribed by statute and are generally unrelated to those comprising the hospital budget. See Highway Law § 141. Thus, the subject matter of the budgets will generally be unrelated. We note that the fact that one individual is responsible for submitting two budget requests that compete for limited town funds may give rise to a potential conflict. See Op. Att'y Gen. (Inf.) No. 94-43. However, inasmuch as the individual in question will be one of several members of the Hospital Board responsible for submitting the proposed hospital budget for approval by the Fine Town Board, we believe any potential conflict is mitigated in this case.

We note further that under certain circumstances the duties of the two positions could overlap. For example, although there is no statutory provision requiring a town highway superintendent to perform services respecting a town hospital's grounds, Town Law § 32(1) provides that a town board may assign the highway superintendent with "such further duties as the town board may determine not inconsistent with law." Although you have indicated that at this time the Highway Superintendent performs no hospital-related duties, additional duties conceivably could include maintaining and repairing a town hospital's parking lots, snow removal from those lots and similar services. See Op. State Compt. No. 79-367 (additional duties of repair and snow removal from town hospital parking lots may be assigned to highway superintendent if they do not conflict with his ordinary duties or are otherwise impractical). If additional duties such as these matters were assigned, the potential overlap does not appear to be inconsistent or adverse to the interests served by either position. In addition, although the cost of such further duties may possibly be chargeable to the town highway fund, see id., initial authority to assign such duties and to approve consequent expenses rests with the town board. This too mitigates against the appearance of a conflict.

However, it is also foreseeable that matters could come before the Hospital Board that involve town highway issues, such as whether to request snow removal service or parking lot maintenance from the town. Because it could be perceived that the highway superintendent would have divided loyalties in such situations, the superintendent should recuse himself from participation in the Board's decision making on such matters to avoid a potential conflict or appearance of impropriety.

In sum, we conclude that one person may hold simultaneously the positions of town highway superintendent and member of the board of managers of a public hospital jointly owned by the same town and another town.

The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of views of this office.

Very truly yours,

LAURA ETLINGER
Assistant Solicitor General
In Charge of Opinions

By: ________
ANN P. ZYBERT
Assistant Solicitor General

Footnote: Included in the budget categories of Highway Law § 141 are estimates for: highway repair and improvements, § 141(1); bridge repair and improvements, § 141(2); equipment, § 141(3); and removal of obstructions caused by snow and other miscellaneous purposes, § 141(4).