Informal Opinion No. 89-62

Kevin A. Luibrand, Esq.

Attorney General of New York — Opinion
Dated: November 8, 1989

The common law doctrine of compatibility of office does not prohibit a person from being a candidate for election to a second office.

Kevin A. Luibrand, Esq. Town Attorney, Clifton Park

Your question is whether a person holding a public office that is incompatible with the duties of a second office may run for that second office while continuing to hold the first office. You have indicated that the person involved would give up the first office should he be elected to the second office.

Compatibility of office deals with the question whether a person may hold two or more offices simultaneously (People ex rel. Ryan v Green, 58 N.Y. 295 [1874]). The impact of accepting an office that is incompatible with the office already held is the vacation, by operation of law, of the first office (ibid.). Thus, incompatibility does not disqualify an incumbent from running for a second office, but once elected, would prevent him from holding both offices. Compatibility of office is a common law doctrine. We note, however, that a statute establishing incompatibility has been construed as disqualifying a person from being a candidate for election to the second office (People v Purdy, 154 N.Y. 439 [1897]; compare Matter of Clancy v Sloan, 273 N.Y. 152
[1937]). Thus, you should determine whether any statutes or local laws apply to holding of the positions in question that may bear on eligibility to be a candidate for the second office.

We conclude that the common law doctrine of compatibility of office does not prohibit a person from being a candidate for election to a second office.