Opinion 01-108

October 25, 2001

Digest:            Under the circumstances presented, the spouse of a village police officer who performs administrative duties may serve as clerk of the village court, provided that the court clerk is insulated from any case in which the officer had been involved.

Rule:               22 NYCRR 100.2; 100.3(E)(1); Opinions 99-173; 99-123; 99-72.

            A village judge asks whether it is permissible to hire as court clerk the spouse of a police officer in the village police department. "The officer is an administrative officer of the department, and in the past five years . . . has written two tickets."

            In the opinion of the Committee, based on the facts presented, there is no ethical barrier to the appointment of the spouse of the police officer as court clerk. That fact alone does not give rise to an appearance of impropriety under section 100.2 of the Rules Governing Judicial Conduct, nor does it require recusal or disclosure in all matters involving the police department. That is, the mere fact of the relationship does not give rise to an inference of partiality on the part of the judge so as to disqualify the judge under section 100.3(E)(1) of the Rules in proceedings involving the local police. See Opinion 99-173. Of course, should a matter come before the court in which the spouse appears or had been involved, there should be insulation of the court clerk from that matter. See Opinions 99-123; 99-72. Whether there should be an additional remedy of also transferring the case to the acting village justice, a suggestion offered by the inquirer, would depend on particular circumstances that might warrant such action.