...just one of several court cases used by the NYS Attorney General's office to form the basis of their opinions on compatibility of office and the Whitehall Doctrine.
From the court decision:
"Although not addressed by either side of this litigation, whether for tactical reasons or otherwise, the law governing the consequence of incompatible office-holding has been established in New York since at least 1874, when our State's highest court declared that when incompatibility exists, “one office is ipso facto vacated by accepting another” (People ex rel. Ryan v. Green, supra, 58 N.Y., at 304)."As a rule, Municipal Home Rule Law cannot be used to supersede general law that applies to all towns in New York...Town Law 64-5 is a general law that applies to a other towns in the State of New York.
"As further explained almost 60 years ago in Matter of Smith v. Dillon:"
"It is a well-settled rule of the common law that a public officer cannot hold two incompatible offices at the same time. The rule is founded upon the plainest principles of public policy. It is embedded in the common law and has obtained from very early times. At common law and under constitutional and statutory prohibitions against the holding of incompatible offices, a person who accepts and qualifies for a second and incompatible office is generally held to vacate, or by implication resign, the first office, so that no judicial proceedings are necessary to determine the title. The successor may at once be elected or appointed. (Supra, 267 App.Div., at 43, 44 N.Y.S.2d 719)."
However, there are exceptions cited in many NYS Attorney General opinions:
Attorney General Opinion 1984Attorney Cully tried that one; the Park Director job vacancy was never advertised and it is a civil service position so more than likely the town would have no problem filling the vacancy. Plus, how does the town attorney justify the statement that we are a small town? How many times have officials touted that we are the largest town in Oneida County? Besides, why does a small town need a 50,000 square foot town hall and a police force to try to rival the City of Utica?
"We have also concluded, however, that the town board in determining public policy on behalf of the town may, by local law supersede the common law doctrine of compatibility of office (Op Atty Gen [Inf] 83-50).
For example, in a small town there may not be enough residents willing to serve the town or there may be few persons possessing required expertise. In situations such as these, the town board may find it necessary, in furthering the public interest, to establish exceptions to the common law rule of compatibility of office."
N.Y. Att'y Gen. 1988Again, Cully used all of Miscione's qualifications to reason that his appointment as Parks Director is in the public interest. While it is wonderful that our supervisor has so many talents; it does not fit the criteria under the "public interest" rule; I would guess there are many in town with the same talents.
"In considering such a local law, it is necessary that the town board weigh the incompatibility against the public benefit to be derived from retention of the employee. In our view, the perception of the person as a valued and competent employee is an insufficient basis for retention if there are other competent persons willing to serve."
Cully also said we don't have any money. That may now be true, but there was money for a Parks Director in the 2018 budget, but instead of continuing to budget for the director position, Miscione used the money to give luxurious raises to some employees and to pay for some of his pet projects. Perhaps, it would have been wise to "settle in" to his supervisor role before spending the town's money and bonding for almost $6,000,000 of additional debt within weeks of taking office. Perhaps, Miscione should call the NYS Attorney General and ask if lack of money fits the "public interest" test! LOL!
Absent an ability to show the appointment of Miscione as Parks Director is in the public interest, there is little left to be done except follow Town Law 64-5. The time is way overdue.
Miscione accepted the Parks Director position months ago; and in reality, by Town Law 64-5, at this point (ipso facto), he is no longer the town supervisor. His insistence on ignoring town law in an effort to remain in both positions is starting to draw questions from town residents.
Perhaps, he better act quick to determine which hat he wants to wear before someone else makes the choice for him!
Should Attorney Cully go down the road of advising the town board to just not appoint anyone as Parks Director thinking that Miscione would automatically have the Parks Director position like was mentioned at the last town board meeting...you better check your "blue book", Attorney Cully. I've already looked it up in my copy of the "blue book"; your opinion is not in conformance with law.
And, I just have to ask...anyone out there know what does Oneida County; Town of New Hartford; pro bono work to redesign the Rec Center; and the Whitehall Doctrine have in common?
Just wondering...don't really expect an answer from the "people in the know out there".