Can one person serve as both the village clerk/treasurer and the village court clerk in a New York village?
Plain-English summary
The Village Attorney for Oxford asked whether the Village could combine the positions of village clerk/treasurer and village court clerk, or appoint the same person to both, in order to give the board of trustees more oversight of the court clerk position. The AG concluded the two positions are incompatible and one person cannot perform both.
The AG laid out the common-law incompatibility test: in the absence of a constitutional or statutory bar, two offices are incompatible if their functions are inherently inconsistent, such as when one is subordinate to the other or one audits the accounts of the other. O'Malley v. Macejka (1978); Matter of Ryan v. Green (1874). These principles also apply to public employment, not just public offices. Matter of Dupras v. County of Clinton (1995).
Applying that test, the AG concluded the duties of the two positions conflict. The court clerk receives court fines, fees, forfeitures, and surcharges, and must transmit those collections to the village treasurer and file a monthly report of court receipts with the State Comptroller. State Finance Law § 99-a(3). The treasurer holds those funds, accounts for them, and pays the State and county their respective shares before the Village can recognize its own share as revenue. The two officials therefore serve as a fiscal check on each other; combining the positions would eliminate that safeguard.
The same logic applies to the deputy treasurer under Public Officers Law § 9, because that person performs the treasurer's duties in the treasurer's absence.
Currency note
This opinion was issued in 2014. 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
What did the opinion conclude?
That the position of village clerk/treasurer is incompatible with the position of village court clerk, and one person cannot hold both, whether by combining them into one role or by separately appointing the same individual to each.
Why are the two positions incompatible?
Because of the financial workflow. The court clerk collects court receipts and transmits them to the treasurer. The treasurer then accounts for the funds and distributes the State and county shares before recognizing the Village's share as revenue. Having one person at both ends of that chain eliminates the cross-check that the two-position structure was designed to provide.
What is the test for incompatibility of office in New York?
Two offices are incompatible if their functions are inherently inconsistent. Classic examples are when one position is subordinate to the other or audits the other's accounts. The test comes from Matter of Ryan v. Green (1874) and was reaffirmed in O'Malley v. Macejka (1978). It applies to public employment as well as to formal public offices, per Matter of Dupras v. County of Clinton (1995).
Could the Village restructure to allow more oversight of the court clerk through some other means?
The opinion does not address restructuring options, but the analysis suggests possibilities like board approval requirements for court-clerk appointments, periodic audits by an external accountant, or enhanced reporting requirements. The opinion is specifically against having one person hold both positions.
What about the deputy treasurer?
The same incompatibility applies. Under Public Officers Law § 9, the deputy treasurer performs the treasurer's duties when the treasurer is absent. So a deputy treasurer cannot also serve as court clerk.
Background and statutory framework
The treasurer's duties are set out in Village Law §§ 3-301(2)(a), (b) and 4-408: custody of village money, accounting for receipts and expenditures, deposits in the village's name, payouts as authorized by law, and an annual statement of revenues, expenditures, and outstanding indebtedness. The court clerk's role is administrative support to the village justices under Village Law §§ 4-400(1)(c)(i), (ii) and 4-402.
State Finance Law § 99-a governs the handling of court receipts. The court clerk transmits collections to the treasurer; the treasurer holds the funds as a Village liability until the State Comptroller determines the proper distribution among Village, county, and State; then the treasurer pays out the State and county shares and the Village can recognize its share as revenue.
Village Law § 3-300(3), which prohibits one person from holding both an elective and an appointive village office, did not apply because neither position is elective. Village Law § 3-301(3). The case law incompatibility test was therefore the operative analysis. Public Officers Law § 9 extends the result to deputy positions.
Citations
The dual-office incompatibility cases are O'Malley v. Macejka, 44 N.Y.2d 530 (1978); Matter of Ryan v. Green, 58 N.Y. 295 (1874); and Matter of Dupras v. County of Clinton, 213 A.D.2d 952 (3d Dep't 1995). Statutory framework: Village Law §§ 3-300(3), 3-301(2)(a), (b), 3-301(3), 4-400(1)(c)(i), (ii), 4-402, 4-408. Court receipts handling: State Finance Law § 99-a, 99-a(3). Deputy positions: Public Officers Law § 9. Earlier AG informal opinion on related question: Op. Att'y Gen. (Inf.) No. 97-48 (clerk of town justice court is not a public officer).
Source
- Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
- Original PDF: https://ag.ny.gov/sites/default/files/opinions/2014-1_pw.pdf
Original opinion text
Village Law§§ 3-300(3), 3-301(2)(a), 3-301(2)(b), 3-301(3), 4-400(1)(c)(i), 4-400(1)(c)(ii), 4-402, 4-408; State Finance Law §§ 99-a, 99-a(3); Public Officers Law § 9
The positions of village clerk/treasurer and village court clerk are incompatible.
April 3, 2014
Roger Monaco
Village Attorney
Village of Oxford
P.O. Box 391
20 Lafayette Park
Oxford, New York 13830
Informal Opinion
No. 2014-1
Dear Mr. Monaco:
You have requested an opinion relating to the compatibility of the positions of village clerk/treasurer ("treasurer") and village court clerk. You have explained that the Village is considering either combining the two positions or appointing one person to serve in both positions to allow greater oversight of the court clerk position by the village board of trustees. As explained below, we are of the opinion that the positions are incompatible and thus one person may not perform the duties of both.
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 their functions are inherently inconsistent, such as when one is subordinate to the other or one audits the accounts of the other. See O'Malley v. Macejka, 44 N.Y.2d 530, 535 (1978); Matter of Ryan v. Green, 58 N.Y. 295, 304-305 (1874). These principles apply to positions of public employment as well as to public offices. See Matter of Dupras v. County of Clinton, 213 A.D.2d 952 (3d Dep't 1995).
We are not aware of any constitutional or statutory prohibitions against holding the two positions at the same time. Village Law § 3-300(3), which prohibits one person from holding both an elective and an appointive village office, does not apply here; even assuming both positions are "offices", but see Op. Att'y Gen. (Inf.) No. 97-48 (clerk of town justice court is not public officer), neither is an elective office. Village Law § 3-301(3). And neither position is subordinate to the other: the treasurer is responsible to the village mayor and board of trustees while the court clerk performs duties at the request of the village justice. See Village Law §§ 3-301(2)(a),(b),(3); 4-400(1)(c)(i),(ii); 4-402; 4-408.
However, the duties of the positions conflict. The court clerk, who provides clerical and administrative assistance to the village justices, accounts for one important source of Village funds, namely the fines, fees, forfeitures, and surcharges collected by the court. The court clerk is responsible for transferring those collections to the village treasurer, and for filing a monthly report of court receipts with the State Comptroller. See State Finance Law § 99-a(3); Division of Local Gov't & School Accountability, New York State Office of the State Comptroller, Justice Court Fund: Handbook for Town and Village Justices and Court Clerks 12, 20 (2010) ("Handbook").
The treasurer has custody of the Village's money, keeps accounts of all receipts and expenditures, makes deposits in the name of the Village, pays out money from the village treasury as authorized by law, and files at the end of the fiscal year a statement showing in detail all revenues and expenditures during the previous fiscal year and outstanding indebtedness. Village Law § 4-408. When funds are received from the court clerk, the village treasurer accounts for and maintains the funds, as a liability against the Village, until the State Comptroller determines the proper distribution of the monies, as between the Village and the State and county. State Finance Law § 99-a; Handbook at 23. The village treasurer then pays to the State the moneys owed for the State's and county's shares and the Village's share can be recognized as revenue to the Village. Handbook at 23.
Because the court clerk transmits these funds to the Village, and the treasurer maintains the funds and transfers some portion of them to the county and State, the two officials serve as a fiscal check on each other and a safeguard for these funds. Having one person serve as both treasurer and court clerk would compromise this fiscal check. The duties of the positions therefore conflict and the positions are incompatible. One person may not perform the duties of both positions simultaneously, whether they are combined into one or the same person is appointed to both.
This same incompatibility of functions exists for the deputy treasurer, because that person performs the duties and exercises the powers of the treasurer in the treasurer's absence, see Public Officers Law § 9. Thus, the same reasoning prevents the deputy treasurer from also performing the duties of court clerk.
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