Untitled New York Attorney General Opinion

COUNTY LAW §§ 193, 400(1), 400(2), 400(3-a), 400(3-b), 400(4-a), 400(4-b), 671(1),

671(1)(b), 673, 673(2), 674(2), 674(3)(a), 674(4), 677(4)

The positions of elected county coroner and chief investigator for the district attorney

are not compatible.

December 12, 2016

Robert J. Fitzsimmons Informal Opinion

County Attorney No. 2016-4

Columbia County

401 State Street, Suite 2B

Hudson, NY 12534

Dear Mr. Fitzsimmons:

You have requested an opinion as to whether the district attorney for the

county can employ one of the four elected county coroners as chief investigator. Your

question in essence is whether the positions of elected county coroner and chief

investigator are compatible. As explained below, we are of the opinion that they are

not.

You have provided a job description that states that the position of chief

investigator in the district attorney’s office functions under the personal direction of

the district attorney. In addition, the chief investigator acts as the district attorney’s

personal representative at the scene of a crime.

The County Law provides, as a general matter, that each county must have,

for the purpose of investigating certain enumerated types of deaths, either an elected

coroner (or coroners) or a medical examiner appointed by the county legislature.

County Law § 400(1),(2),(4-a). A medical examiner must be a physician licensed in

New York. Id. § 400(4-a). A coroner must either be a physician licensed in New York,

or be assisted in specified respects by a “coroner’s physician,” who must be a physician

licensed in New York, see County Law § 400(4-b); id. § 671(1); see also 1962 Op. Att'y

Gen. (Inf.) 176 (board of supervisors must appoint duly licensed physician if coroner

is not so licensed), appointed by the county legislature. Id. §§ 400(4-b), 673(2).

The coroner, assisted where necessary by the coroner's physician, or the

medical examiner, investigates every death within the County that is or appears to

be (1) a violent death, whether by criminal violence, suicide, or casualty; (2) a death

caused by unlawful act or criminal neglect; (3) a death occurring in a suspicious,

unusual or unexplained manner; (4) a death caused by a suspected criminal abortion;

(5) a death while unattended by a physician, so far as can be discovered, or where no

physician able to certify the cause of death can be found; and (6) a death of a person

confined in a public institution other than a hospital, infirmary, or nursing home.

County Law § 673. The coroner, assisted where necessary by the coroner's physician,

or the medical examiner also investigates all deaths of inmates of correctional

Page 2

facilities within the County, whether or not the death occurred inside the facility. Id.

§ 671(1)(b).

Upon taking charge of the body of a deceased person, the coroner, the coroner

and the coroner’s physician, or the medical examiner must “fully investigate the

essential facts concerning the death.” County Law § 674(2). The investigation must

include steps to ascertain any facts the district attorney, sheriff, chief of police, or

superintendent of the State Police requests in writing. Id. § 674(3)(a). Furthermore,

a coroner, a coroner and coroner’s physician, and a medical examiner are empowered

to subpoena and examine witnesses under oath in the same manner as a magistrate

in holding a court of special sessions. Id. § 674(4). And, when, in the opinion of the

coroner, the coroner’s physician, the medical examiner, or other doctor performing

the autopsy, there is an indication that a crime was committed, the coroner or doctor

must deliver to the district attorney copies of the records relating to the death. Id.

§ 677(4).

This statutory scheme demonstrates that the elective office of coroner, with its

responsibility to render an impartial determination of the cause of death, has a role

independent of and distinct from those of law enforcement officers. The Court of

Appeals, considering the duties of the medical examiner, which are by statute

identical to those of a coroner or a coroner and coroner’s physician, has found “that

the duties of the [medical examiner] are, by law, independent of and not subject to

the control of the office of the prosecutor, and that [the medical examiner] is not a law

enforcement agency.” People v. Washington, 86 N.Y.2d 189, 192 (1995). “Moreover,

Medical Examiners have no authority to gather evidence with an eye toward

prosecuting a perpetrator.” Id. at 193. See also Scheufler v. Bruno, 250 A.D.2d 268,

270-71 (3d Dep’t 1999) (medical examiner does not act under direction and control of

district attorney and investigation is not part of criminal proceeding); Op. Att’y Gen.

(Inf.) No. 87-30 (coroner must perform duties independently and thus coroner may

not also serve as town police officer). And it is this independence that, in our opinion,

renders the office of coroner fundamentally incompatible with the position in the

district attorney’s office that you have described. The coroner’s independence and

impartiality would erode or would appear to erode if the coroner also held a position

in the district attorney’s office that answered directly to the county’s chief law

enforcement officer. At the scene of a death potentially caused by a criminal act, it

would be unclear whether the coroner was acting in his capacity of coroner or of chief

investigator for the district attorney. A witness to the death who could provide

valuable information to the coroner might be wary of providing the same information

to the chief investigator for the county prosecutor. And in the course of the coroner’s

investigation into the cause of death, the coroner’s consideration of the circumstances

surrounding the death would be colored by his responsibilities as chief investigator

to the district attorney. We therefore are of the opinion that a coroner cannot also

Page 3

serve as the chief investigator to the district attorney as you have described that

position.

You have cited two opinions that suggest that the duties of district attorney

and of coroner—and presumably, by extension, those of an investigator for the district

attorney and of coroner—may be combined. First, in Op. Att’y Gen. (Inf.) No. 89-27,

we recognized that, by state law, the powers and responsibilities of coroner in

Madison County were granted to the district attorney. Similarly, the Legislature

transferred the powers and duties of the Lewis County coroner to that county’s

district attorney. See County Law § 400(3-a). However, potential conflicts between

the duties of the positions rendering the positions incompatible were noted in the

legislative history to the statutes authorizing the combination. Letter to John G.

McGoldrick, Counsel to the Governor, from Edward V. Regan, State Comptroller (Jul.

16, 1982), reprinted in Bill Jacket for ch. 759 (1982); Letter from Francis S. McGarvey,

Superintendent of Div. of State Police, to Roswell B. Perkins, Counsel to the Governor

(Feb. 26, 1959), reprinted in Bill Jacket for ch. 536 (1959), at 12; Letter from Alfred

W. Haight, Counsel to the Comptroller, to Roswell B. Perkins, Counsel to the

Governor (Apr. 3, 1959), reprinted in Bill Jacket for ch. 536 (1959), at 15. Moreover,

the Legislature prohibited other counties from using their home rule authority to

similarly combine the responsibilities to be exercised by a single person, see County

Law § 400(3-a), (3-b). The Legislature thereby indicated that the combining of the

functions of the offices was not a determination to be made locally.

Second, in Op. Att’y Gen. (Inf.) No. 81-27, we seemed to suggest that a part-

time district attorney could also be employed as a medical examiner’s investigator.

But our focus in that opinion was on whether the district attorney could receive

additional pay for his work as investigator. Notably, we did not compare the

responsibilities of the two positions to determine whether they were compatible. And

in any event, that opinion preceded the Court of Appeals’ unequivocal statement in

People v. Washington as to the independence of the medical examiner’s function,

equally applicable to a coroner’s function.

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