The opinion
Evertt J. Johns., Esq. Clarkstown Town Attorney
You state that Clarkstown is a town of the first class and has established a department of purchasing under the authority of Town Law § 20 subd 3 par e and the office of comptroller under the authority of Town Law § 20 subd 3 par b. You point out the provisions of Town Law § 20 subd 3 par e prohibiting the combining of the duties of director of purchasing and the duties of comptroller. You request our opinion whether the town department of purchasing may be made a division of the town comptroller's office if different individuals are appointed as director of purchasing and as comptroller.
The powers and duties of director of purchasing are set forth in Town Law § 41-a . In general they require that:
"* * * the director of purchasing shall make all purchases and all contracts for supplies, materials and equipment of every nature for the town and for any town department, board or agency for which the town may in any event be liable * * *."
The powers and duties of a town comptroller are set forth in Town Law § 34 and, among other things, include:
"* * * the powers of the town board * * * with respect to auditing, allowing or rejecting all accounts, charges, claims or demands against the town * * * and with respect to the powers so conferred and the duties so imposed he shall be the town board of the town * * *."
People ex rel. Ryan v Green, 58 N.Y. 295 (1874), the leading case on incompatibility of office, states at p 304:
"Incompatibility between two offices, is an inconsistency in the functions of the two; as judge and clerk of the same court — officer who presents his personal account subject to audit, and officer whose duty it is to audit it."
The statutory prohibition in Town Law § 20 subd 3 par e against combining the duties of the director of purchasing and the comptroller in one office constitutes recognition of the common law rule by the Legislature.
If a principal is disqualified from performing an act or prevented from doing some duty, it follows that his subordinate is similarly disqualified. If the functions of two principals cannot be combined, the functions of their subordinates cannot be.
In our opinion, a town department of purchasing may not be made a division of the town comptroller's office even if different individuals are appointed as director of purchasing and as comptroller.