Can the same person serve as a county legislator and as a town historian in New York?

Plain-English summary

The Oswego County Attorney asked whether a sitting county legislator could simultaneously serve as town historian for one of the towns in the county. The concern was a possible conflict: the County Legislature appoints the county historian, and the county historian is supposed to "supervise the activities of the local historians" within the county. If the County Legislature indirectly supervised the town historian through the county historian, then a county legislator serving as a town historian would arguably hold incompatible offices.

The Attorney General's office, through Assistant Solicitor General Kathryn Sheingold, concluded the offices were compatible. The supervisory relationship that creates incompatibility had to be real authority over the subordinate's appointment, removal, compensation, or duties. A county historian had none of those over a town historian. The town historian was appointed by the town supervisor (not the county historian), removed by the town supervisor, paid (if at all) by the town, reported to the town supervisor and State Historian, and had statutory duties unchanged by whether the county had a county historian at all.

What the county historian actually did was provide guidance, hold occasional meetings, and serve as a conduit between local historians and the State Historian. That kind of advisory or resource-sharing relationship doesn't trigger the supervisor-subordinate doctrine of incompatibility.

Currency note

This opinion was issued in 2012. 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, as it stood in 2012

New York's Arts and Cultural Affairs Law § 57.07(1) required each town supervisor to appoint a town historian. The town historian was uncompensated unless the town board provided compensation. The town historian's primary job was to collect and preserve local historical material and file an annual report with the town supervisor and State Historian.

A county historian was optional under the same statute. If the County Legislature chose to appoint one, that person had duties similar to local historians plus the duty to "supervise the activities of the local historians in towns and villages within the county in performing the historical work recommended" by the State Historian.

The compatibility-of-offices doctrine, traced back to People ex rel. Ryan v. Green, 58 N.Y. 295 (1874), held that one person cannot hold two offices where one is subordinate to the other. The principle applied even to indirect supervision, as in Matter of Dupras v. County of Clinton, 213 A.D.2d 952 (3d Dep't 1995), which held a county legislator and a senior clerk in the county board of elections were incompatible because the legislator could vote on the board's budget and the clerk's commissioners' salaries.

The opinion's reasoning leaned on the historical record of how the county-historian role came to be. The Legislature originally created town historians in 1919 (Session Laws 1919, ch. 181), at which time the State Historian provided annual guidance to local historians via letter. The county historian role was added in 1933 (Session Laws 1933, ch. 107) specifically to supplement that guidance, with the goal that "some competent local man or woman would outline their work and call them together occasionally for helpful conferences." That history showed the county historian was intended as a guide and resource, not an authority figure.

The opinion also pointed to the State Education Department's published description of the county historian's role: "providing guidance and support to municipal historians in their counties and of serving as a conduit of information between the State Historian in Albany and the local historians in their counties." County historians "hold regular meeting[s] for the local historians in their counties, sponsor in-service training sessions, monitor vacant jurisdictions, propose and carry out co-operative joint projects, and assist the work of their local historians wherever possible." That description fit the guidance model, not a supervisor-subordinate model.

Common questions, framed historically

Q: What's the test for incompatible offices in New York?
A: At the time of the opinion: one person cannot serve in offices where one is subordinate to the other, where they have a right to interfere with each other, or where there's a clear conflict between the duties. The test applied to direct and indirect supervision, but the supervision had to be real authority over hiring, firing, compensation, or substantive direction of duties.

Q: Why didn't the county historian's "supervise the activities" language make it real supervision?
A: The opinion read the word in the context of the entire statutory framework. Town historians were appointed, paid, and removed by town officials, not the county. They reported to town officials and the State Historian, not the county historian. The county historian had no power over the town historian's substantive work. The "supervise" language described coordination and guidance.

Q: Could a county legislator hold any other county-related job?
A: It depends on the relationship. Under Dupras, a county legislator couldn't hold a county board of elections clerkship because the legislator voted on the board's budget and the commissioners' compensation. The dispositive question was whether the legislator was in a position to exert real authority (directly or indirectly) over their other role.

Q: Is this informal or formal opinion?
A: Informal. The Attorney General issues formal opinions only to officers and departments of state government. Informal opinions are issued to assist local officials and have persuasive value but lower formal weight.

Q: Has this analysis been superseded?
A: That's not something this opinion can answer. The reasoning is solid as of 2012. Anyone applying it today should check whether Arts and Cultural Affairs Law § 57.07-.09 has been amended, whether any later AG opinions or court decisions have addressed the same question, and whether the State Education Department's description of the county historian role has changed.

Citations and references

Statutes:
- New York Arts and Cultural Affairs Law §§ 57.07, 57.09 (historian appointment and duties)
- Session Laws 1919, ch. 181 (creating town historian role)
- Session Laws 1933, ch. 107 (creating county historian role)

Cases:
- 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)
- People ex rel. Corrigan v. City of Brooklyn, 149 N.Y. 215 (1896)
- Waters v. City of Glen Cove, 181 A.D.2d 783 (2d Dep't 1992)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2012-6_pw.pdf

Original opinion text

Arts And Cultural Affairs Law §§ 57.07(1), 57.09; Session Laws 1919, CH 181; Session Laws 1933, CH 107

The position of town historian is compatible with member of the County Legislature.

August 8, 2012

Richard C. Mitchell
County Attorney
Oswego County
Legislative Office Building
46 East Bridge Street
Oswego, New York 13126-2137

Informal Opinion No. 2012-6

Dear Mr. Mitchell:

You have requested an opinion relating to the compatibility of the positions of town historian and member of the County Legislature. This question arises because the County Legislature appoints the county historian, who provides guidance to the town historian. A member of the County Legislature currently also serves as historian for a town within the county. You are concerned that these positions may have a disqualifying supervisory relationship. As explained below, we are of the opinion that the relationship is not supervisory and therefore the positions are compatible.

A town historian must be appointed for each town by the town supervisor. Arts and Cultural Affairs Law § 57.07(1). The town historian is not compensated unless the town board provides for compensation. Id. The town historian's primary responsibilities are to collect and preserve material relating to the history of the town for which he is appointed. Id. § 57.09. The historian makes an annual report on the prior year's work to both the town supervisor and to the State Historian. Id. § 57.09.

A county historian may, but need not, be appointed by the County Legislature for each county outside New York City. Arts and Cultural Affairs Law § 57.07(1). Like the town historian, the county historian is not compensated unless the governing board provides otherwise. Id. The county historian reports annually to the County Legislature and to the State Historian. Id. § 57.09. A county historian has duties similar to those of town and other local historians, and in addition a county historian is to "supervise the activities of the local historians in towns and villages within the county in performing the historical work recommended" by the State Historian. Arts and Cultural Affairs Law § 57.09.

A fundamental principle of compatibility of office is that one person cannot serve as both supervisor and subordinate. See People ex rel. Ryan v. Green, 58 N.Y. 295, 305 (1874) ("The offices must subordinate, one the other, and they must, per se, have the right to interfere, one with the other, before they are incompatible at common law."). This is true even when the supervision is not direct. In Matter of Dupras v. County of Clinton, 213 A.D.2d 952 (3d Dep't 1995), the court held that the positions of county legislator and senior clerk with the county board of elections were incompatible. "Here, the incompatibility is readily apparent since in her legislative capacity Perry will be in a position to vote upon the budget and personnel of the Board of Elections, as well as the salary of the commissioners who are her supervisors and who may remove her at their pleasure." 213 A.D.2d at 953. Similarly, the County Legislature supervises the county historian, and a member of the County Legislature could not also serve as county historian. The question is whether the county historian in turn supervises the town historian in such a way as to render the County Legislature the indirect supervisor of the town historian, and prevent a member of the County Legislature from simultaneously serving as town historian.

We are of the opinion that the relationship between the county historian and the town historian is not one of subordination that implicates this principle of incompatibility. First, the statutory structure of the relationship between the county historian and the town historian is not one of a supervisor and a subordinate. The county historian does not appoint the town historian or determine whether the position of town historian will be compensated; instead, these decisions, hallmarks of a supervisor-subordinate relationship, are made by town officials. As an appointee of the town supervisor, the town historian is subject to dismissal by the town supervisor, not the county historian. See People ex rel. Corrigan v. City of Brooklyn, 149 N.Y. 215, 223-24 (1896); Waters v. City of Glen Cove, 181 A.D.2d 783 (2d Dep't 1992). The town historian files his annual report with the town supervisor and the State Historian, not with the county historian. The town historian's responsibilities and duties remain the same, whether or not the county has its own historian. Thus, the town historian is not statutorily established as a subordinate of the county historian.

Second, the "supervision" that a county historian exercises with respect to a town historian does not subordinate the town historian to the county historian or, by extension, to the County Legislature, because the county historian (where one exists) provides guidance and assistance to the town historian and does not exercise the kind of authority or control that would implicate the principle of incompatible offices. State law originally mandated appointment of town historians in 1919, at a time when county historians had not yet been authorized. Act of April 11, 1919, ch. 181, 1919 N.Y. Laws 765, 766. At that time town historians received guidance from the State Historian, in the form of an annual letter "indicat[ing] to the local historians the general lines along which local history material is to be collected." Act of April 11, 1919, 1919 N.Y. Laws at 766. The Legislature added a provision authorizing the appointment of county historians in 1933, Act of March 31, 1933, ch. 107, 1933 N.Y. Laws 156, largely in order to provide additional guidance to local historians beyond the annual letter from the State Historian. "It would be much better for the county if some competent local man or woman would outline their work and call them together occasionally for helpful conferences." Letter from Alexander C. Flick, State Historian, to Governor Hebert Lehman (March 23, 1933), reprinted in Bill Jacket for ch. 107 (1933), at 4. Thus, the statutory role of the county historian with respect to the town historian is not to exercise control over a subordinate but rather to provide guidance and educational resources, a role that does not create the potential for conflict that is addressed by the principle of incompatible offices.

Indeed, the website of the State Education Department, the agency within which the State Historian is located, describes the supervisory responsibilities of the county historian as that "of providing guidance and support to municipal historians in their counties and of serving as a conduit of information between the State Historian in Albany and the local historians in their counties." http://www.nysm.nysed.gov/services/historian/srvguidelines.html. It elaborates, "County historians hold regular meeting [sic] for the local historians in their counties, sponsor in-service training sessions, monitor vacant jurisdictions, propose and carry out co-operative joint projects, and assist the work of their local historians wherever possible." Id. These descriptions of the role of the county historian with respect to municipal historians do not reflect a supervisor-subordinate relationship between the county and town historians.

We therefore conclude that the position of town historian is not subordinate to the county historian or, by extension, the County Legislature. Nor are we aware of any duties of town historian that would conflict with the duties of a member of the County Legislature. We thus are of the opinion that the positions of town historian and member of the County Legislature are compatible.

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