Can a New York district attorney who is also serving as the county coroner appoint the county's emergency medical services coordinator as deputy coroner, when the EMS coordinator is not a physician?

Informal Opinion 2011-02: A non-physician EMS coordinator cannot be appointed deputy coroner in Lewis County, both because of the licensed-physician requirement and because the two roles are inherently incompatible

Plain-English summary

In Lewis County, the District Attorney also serves as the coroner. (A 1959 special law abolished the elected coroner position there and folded it into the DA's office.) The current DA wanted to appoint the county's Emergency Medical Services Coordinator as deputy coroner. The EMS Coordinator is not a physician. The County Attorney asked the AG whether this appointment, or alternatively a newly created "Medical Investigator" position, would be lawful.

The AG said no, on two separate grounds:

Licensed-physician requirement. County Law contemplates either a physician serving as coroner or medical examiner, or a "coroner's physician" assisting a non-physician coroner. The 1959 Lewis County legislation was meant to let the DA, in her coroner role, call a physician in the locality where a death needed investigating and appoint that doctor as a coroner's physician for the duration of that investigation. The legislative scheme requires medical expertise to be present somewhere in the chain. Because the DA in Lewis County is not a physician, her deputy must be one. A non-physician EMS Coordinator cannot fill that role. A prior AG opinion (Op. Att'y Gen. (Inf.) No. 83-30) held that the duty to "take charge of" a dead body cannot even be delegated to a licensed physician's assistant; the same logic excludes EMS coordinators.

Incompatible offices. Even if the EMS Coordinator were a physician, holding both positions simultaneously would create an inherent conflict. The EMS Coordinator runs emergency medical responses in the county; he attends emergency calls, oversees the work of EMTs, sometimes provides care directly, and trains the responders. Many emergency calls end in deaths that the coroner's office must investigate. The deputy coroner would therefore be reviewing his own work as EMS Coordinator. Under O'Malley v. Macejka and the line of cases on incompatible offices, two positions are incompatible if "one is subordinate to the other or there is an inherent inconsistency between the two offices." The deputy coroner / EMS coordinator pairing fails that test. Prior opinions confirmed similar incompatibilities: fire marshal / fire chief (Op. Att'y Gen. (Inf.) No. 2000-20), fire investigator / building code enforcement officer (Op. Att'y Gen. (Inf.) No. 98-44).

Renaming the position does not help. Creating a "Medical Investigator" position would not avoid either problem. The licensed-physician requirement still applies, and the incompatibility with the EMS Coordinator role persists.

The AG offered a practical workaround: under County Law § 674(1), the DA can "employ and designate" a qualified physician in the community where a particular death occurred, for the duration of that single investigation. This was the 1959 legislation's intended use case. Or the County could ask the State Legislature for special legislation tailored to Lewis County's situation.

Currency note

This opinion was issued in 2011. 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.

Background and statutory framework

New York County Law generally requires each county to have either an elected coroner (or coroners) or a county-appointed medical examiner to investigate certain deaths (§ 400(1), (2), (4-a)). A medical examiner must be a physician licensed in New York (§ 400(4-a)). A coroner must either be a New York-licensed physician or be assisted by a "coroner's physician," who must be a New York-licensed physician appointed by the county legislature (§§ 400(4-b), 671(1), 673(2)).

Section 673 enumerates the deaths the coroner or medical examiner must investigate: violent deaths, deaths caused by unlawful act or criminal neglect, deaths in suspicious or unexplained circumstances, suspected criminal abortions, deaths unattended by a physician, and deaths of inmates in public institutions other than hospitals. Section 671(1)(b) extends the duty to deaths of inmates of correctional facilities.

In Lewis County, the legislative pattern is unusual. A 1959 special law (Chapter 536) abolished the elected coroner position and transferred its powers and duties to the District Attorney. Section 400(3-a) codified part of this. The legislative history (a 1959 letter from the Lewis County Attorney to the Executive Chamber) explained that the change was designed to let the DA, on receiving notice of a death, call a local physician and appoint that doctor as a coroner's physician for the duration of that one investigation. This solved the recurring practical problem of finding any one physician willing to commit to all the routine duties of the coroner's office (relatively low pay, frequent travel, time away from private practice).

The doctrine of incompatible offices is rooted in common law and applies to both public offices and public employment positions. Two offices are incompatible if "one is subordinate to the other or there is an inherent inconsistency between the two offices" (O'Malley v. Macejka, 44 N.Y.2d 530, 535 (1978)). The principle is enforced by judicial vacancy declarations under New York case law going back to People ex rel. Ryan v. Green (1874).

What the AG concluded at the time

The AG worked through the question with two independent grounds:

Ground 1: The non-physician EMS Coordinator is statutorily ineligible for the deputy coroner role. The County Law's coroner framework "clearly contemplates a licensed physician either serving in the role of coroner or medical examiner or assisting the non-physician coroner." Where the DA serves as coroner and is not a physician, the deputy coroner role must include a licensed physician. The EMS Coordinator does not meet that requirement.

The AG cited Op. Att'y Gen. (Inf.) No. 83-30, which held that the County Law § 674 duty to "take charge of" a dead body could not be delegated by a medical examiner to a licensed physician's assistant. If even a physician's assistant cannot fill that role, an EMS coordinator certainly cannot.

Ground 2: The two positions are incompatible. The EMS Coordinator attends most emergency medical calls, oversees EMT work, sometimes provides emergency medical care directly, and trains the EMTs. When an emergency call results in a death (which happens with some frequency), the coroner's office investigates. The deputy coroner would be in the position of reviewing his own actions as EMS Coordinator (whether he provided proper care, whether the EMTs he trained acted appropriately). The conflict is inherent and structural, not avoidable through procedural arrangements.

The AG cited two parallel cases: Op. Att'y Gen. (Inf.) No. 2000-20 (fire marshal cannot also be fire chief, because the marshal investigates the chief's actions) and Op. Att'y Gen. (Inf.) No. 98-44 (fire investigator cannot also be building code enforcement officer, because the fire investigator reviews the code officer's occupancy permit decisions).

Renaming to "Medical Investigator" does not help. The Medical Investigator position would still require a physician (because the duties include taking official possession of dead bodies, the County Law § 674 duty Op. 83-30 said cannot be delegated to non-physicians). And the incompatibility with the EMS Coordinator role persists for the same reason: the Medical Investigator would be reviewing his own EMS Coordinator work.

Practical alternatives. The AG suggested two workarounds. First, the DA can use County Law § 674(1) to "employ and designate" a qualified physician in the community where a particular death occurred, for the duration of that one investigation. This is the mechanism the 1959 legislation was designed to enable. Second, the County could seek special legislation from the State that would authorize an alternative framework tailored to Lewis County's recruitment difficulties.

Common questions

Why does Lewis County have such an unusual coroner setup?
A 1959 special law abolished the elected coroner position because the County had a hard time recruiting a single qualifying physician to the role. The DA inherited the coroner duties, with the practical expectation that she would call a local physician for each individual death investigation.

If the EMS Coordinator were a licensed physician, could he serve?
No, even then. The incompatibility ground stands independent of the physician-licensure ground. He would still be reviewing his own EMS Coordinator work in his deputy coroner capacity.

Could the County hire a different person, who is a physician but not the EMS Coordinator?
Yes. That is the AG's framework: the deputy coroner role is open to any New York-licensed physician without conflicting employment. The DA's challenge is finding such a physician in Lewis County, which is a real problem the 1959 legislation was specifically designed to address.

What is § 674(1) and how does the per-investigation appointment work?
County Law § 674(1) authorizes the coroner (here, the DA) to employ and designate a qualified physician for a specific death investigation when no permanent coroner's physician is available. That physician is treated as the coroner's physician for the purposes of that one investigation. This was the legislative intent of the 1959 Lewis County legislation.

Can the DA "take charge of" a body without a coroner's physician at all?
Section 674(1) allows the DA to "take charge of, remove and transport" a body in some circumstances without first designating a coroner's physician, but she must notify and designate one within 24 hours.

Could the County Legislature appoint a Medical Investigator under a different statutory theory?
The AG did not see a way to do so consistent with County Law's framework and the incompatibility doctrine. The County's better options are the per-investigation § 674(1) mechanism or special State legislation.

Citations

Statutes:

• County Law §§ 400(1), (2), (3-a), (4-a), (4-b)
• County Law §§ 671(1), (1)(b)
• County Law §§ 673, 673(2)
• County Law §§ 674, 674(1)
• Act of Apr. 20, 1959, ch. 536 (Lewis County coroner legislation)

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)
• Haller v. Carlson, 42 A.D.2d 829 (4th Dep't 1973)

Prior AG opinions:

• Op. Att'y Gen. (Inf.) No. 83-30 (taking charge of body cannot be delegated to physician's assistant)
• Op. Att'y Gen. (Inf.) No. 2000-20 (fire marshal/fire chief incompatible)
• Op. Att'y Gen. (Inf.) No. 98-44 (fire investigator/building code enforcement officer incompatible)
• Op. Att'y Gen. No. 97-F7 (public officer/employee distinction)
• 1962 Op. Att'y Gen. (Inf.) 176 (board must appoint physician if coroner is not physician)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2011-2_pw.pdf

Original opinion text

County Law §§ 400(3-a), 400(1), 400(2), 400(4-a), 400(4-b), 671(1), 671(1)(b), 673, 673(2), 674, 674(1)

The district attorney may not appoint the non-physician emergency medical services coordinator as deputy coroner.

February 4, 2011

Richard J. Graham
County Attorney
Lewis County
7660 North State Street
Lowville, New York 13367

Informal Opinion No. 2011-2

Dear Mr. Graham:

You have requested an opinion relating to filling the position of deputy coroner. You have explained that, pursuant to County Law § 400(3-a), the District Attorney in Lewis County also serves as the coroner for the County. The District Attorney of Lewis County would like to appoint as her deputy the current Emergency Medical Services Coordinator (EMS Coordinator), who is not a physician. You have asked whether current law permits such an appointment to either the position of Deputy Coroner or to a position, to be created, of "Medical Investigator." As explained below, we are of the opinion that such an appointment is not permissible.

Analysis

The County Law provides, as a general matter, that each county must have, for the purpose of investigating certain enumerated types of deaths, either an elected coroner (or coroners) or a medical examiner appointed by the county legislature. County Law § 400(1), (2), (4-a). A medical examiner must be a physician licensed in New York. Id. § 400(4-a). A coroner must either be a physician licensed in New York, or be assisted in specified respects by a "coroner's physician," who must be a physician licensed in New York, see County Law § 400(4-b); id. § 671(1); see also 1962 Op. Att'y Gen. (Inf.) 176 (board of supervisors must appoint duly licensed physician if coroner is not so licensed), appointed by the county legislature, id. § 673(2).

The coroner, assisted where necessary by the coroner's physician, or the medical examiner, investigates every death within the County that is or appears to be (1) a violent death, whether by criminal violence, suicide, or casualty; (2) a death caused by unlawful act or criminal neglect; (3) a death occurring in a suspicious, unusual or unexplained manner; (4) a death caused by a suspected criminal abortion; (5) a death while unattended by a physician, so far as can be discovered, or where no physician able to certify the cause of death can be found; and (6) a death of a person confined in a public institution other than a hospital, infirmary, or nursing home. County Law § 673. The coroner, assisted where necessary by the coroner's physician, or the medical examiner also investigates all deaths of inmates of correctional facilities within the County, whether or not the death occurred inside the facility. Id. § 671(1)(b).

The general legislative scheme described above is slightly different with respect to the coroner in Lewis County. In 1959, the Legislature abolished the office of coroner in Lewis County and transferred its powers and duties to the office of the District Attorney. Act of Apr. 20, 1959, ch. 536, §§ 2, 3, 1959 N.Y. Laws 1356, 1356-57, codified in part at County Law § 400(3-a). The intent of this provision specific to Lewis County was to allow the District Attorney, in her capacity as coroner, to call a physician in the locality in which a death needing investigation was discovered and to appoint that doctor a coroner's physician for the duration of the single investigation. Letter from Sanford N. Egloff, County Attorney, to Roswell B. Perkins, Executive Chamber (Feb. 27, 1959), reprinted in Bill Jacket for ch. 536 (1959), at 22. This would eliminate the need to find a single licensed physician willing to commit to perform all duties of the office of coroner (with its relatively low pay), the related necessary travel, and the resulting time away from his or her private practice. Id.

This legislative history demonstrates that in enacting the provisions specific to Lewis County, the Legislature intended that a non-physician district attorney serving as coroner would be assisted by a New York-licensed physician, just as a lay coroner in any other county must be assisted by a licensed physician.

You have asked whether the District Attorney may appoint as deputy coroner the EMS Coordinator, who is not a physician. We believe she may not, for two independent reasons.

First, you have advised that the EMS Coordinator is not a physician, and for that reason he is not eligible for the position of deputy coroner in a county where the coroner is not a licensed physician. The governing statutory framework clearly contemplates a licensed physician either serving in the role of coroner or medical examiner or assisting the non-physician coroner to jointly fulfill the obligations of the position. Indeed, we have previously concluded that the duty to "take charge of" a dead body imposed by County Law § 674 could not be delegated by a medical examiner to a licensed physician's assistant because section 674 was added "precisely for the purpose of ensuring that these specific duties be carried out only by licensed physicians." Op. Att'y Gen. (Inf.) No. 83-30. We therefore believe that a licensed physician must be appointed to the deputy coroner position in Lewis County unless the District Attorney/coroner is a licensed physician. Consequently we are of the opinion that the non-physician EMS Coordinator is not eligible for appointment as deputy coroner.

Second, even if the EMS Coordinator were a physician licensed in New York, we are of the opinion that he would not be able to serve simultaneously as EMS Coordinator and deputy coroner because the two positions are incompatible.

In the absence of a constitutional or statutory prohibition against dual office-holding, one person may hold two offices simultaneously unless they are incompatible. Two offices are incompatible if one is subordinate to the other or 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, 304-05 (1874); Matter of Dupras v. County of Clinton, 213 A.D.2d 952, 953 (3d Dep't 1995). This common law principle applies not only to public offices, which are generally positions that involve the exercise of sovereign authority and discretion, but also to positions of employment. See Matter of Dupras v. County of Clinton, 213 A.D.2d at 953.

The positions of Deputy Coroner and EMS Coordinator are incompatible for the simple reason that the Deputy Coroner must sometimes review the work of the EMS Coordinator. You have explained that the EMS Coordinator is a credentialed emergency medical technician (EMT) responsible for coordinating and providing training to EMTs within the County. You have advised that the EMT Coordinator attends many, if not all, emergency medical calls, and while present oversees the provision of emergency medical services and coordinates those services with other emergency services at the site. He also is responsible for providing emergency medical assistance, such as CPR and basic and advanced life support, as needed at an emergency call.

Emergency medical calls not infrequently result in deaths that must be examined by the coroner and her deputy. Where the EMS Coordinator has either directly provided emergency medical care or overseen and coordinated the provision of such medical services or trained the EMTs who provided the services, the coroner and his deputy will be in the position of investigating or reviewing the work of the EMS Coordinator. This renders the two positions incompatible. See Op. Att'y Gen. (Inf.) No. 2000-20 (one person cannot simultaneously serve as fire marshal and fire chief because duties of fire marshal include investigating or reviewing actions taken by fire chief); Op. Att'y Gen. (Inf.) No. 98-44 (positions of fire investigator and building code enforcement officer are incompatible because fire investigator, when investigating a fire, is empowered to review decision of code enforcement officer to issue occupancy permit).

You have suggested that the problem of finding a coroner's physician might be avoided by creating the position of Medical Investigator and appointing the EMS Coordinator to that position. Appointing the EMS Coordinator to the position of Medical Investigator would not, however, eliminate the requirement of a coroner's physician when the coroner is not a duly licensed physician. Additionally, the EMS Coordinator would still have a conflict of interest if he, as Medical Investigator, were to review or investigate the work he did as EMS Coordinator.

In summary, we conclude that the EMS Coordinator cannot serve either as deputy coroner or as Medical Investigator.

You have explained that it has been difficult to find a physician to serve as deputy coroner. One possible solution to this problem would be for the District Attorney to "employ and designate," as needed, a qualified physician in a community in which a death occurs that is subject to investigation by the coroner. See County Law § 674(1) (if no coroner's physician is available to assist a lay coroner with taking charge of a dead body, the coroner shall employ and designate a physician qualified to make post-mortem examinations and dissections and to testify thereon; that physician shall be deemed a coroner's physician for the purpose of the investigation); Letter from Sanford N. Egloff, County Attorney, to Roswell B. Perkins, Executive Chamber (Feb. 27, 1959), reprinted in Bill Jacket for ch. 536 (1959), at 22 ("Under the proposed legislation, the District Attorney would be brought on the scene in the first instance, could appoint a Coroner's physician in the locality of the scene, and conduct the inquest himself."). The County can also seek special legislation from the State that would authorize an alternative to the scheme found in County Law article 17-A.

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,
KATHRYN SHEINGOLD
Assistant Solicitor General
in Charge of Opinions