Opinion 01-127

January 24, 2002

Digest:         A part-time town judge should not serve as deputy town clerk within the same township.

Rules:          22 NYCRR 100.1; 100.2(A); 100.6(B)(4); Town Law §§ 30; 30(10); 31(2).

Opinion:

         A part-time town judge inquires whether it would be appropriate to accept appointment as a deputy town clerk within the same township as the town court in which the judge serves. The judge would be appointed by the elected town clerk and would serve only in the absence of the town clerk.

         A part-time judge’s employment is governed by section 100.6(B)(4) of the Rules Governing Judicial Conduct, which provides:

A part-time judge may accept private employment or public employment in a federal, state or municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties.

         The duties of town clerk are set forth in Town Law §30. A town clerk, among other things, is responsible for the recording of deeds, collection of fees, maintaining of records and ensuring that various papers and certificates are filed.

         Presumably, the inquiring judge is the only other deputy in the clerk’s office, and, therefore, in the absence of the clerk, would be called upon to exercise all of

the powers and duties of the town clerk in the clerk’s absence.

         Exercising such powers would, we believe, raise serious questions concerning the separation of powers and the independence of the judiciary. 22 NYCRR 100.1. For, although the deputy town clerk may be appointed by the town clerk, under

§ 30(10) of the Town Law, the duties and powers of the deputy town clerk are established by the town. As a result, we believe that judicial independence would be undermined by in the circumstances described by the inquirer were the judge to also serve in the capacity of deputy town clerk. The judge’s powers and duties would be defined by the town board. The judge may be called upon to preside over cases involving the town and the oversight to be exercised by the town in the judge’ other capacity may well have a chilling effect upon the ability of the judge to render judgment freely, unfettered by concerns relating to the judge’s other town position. Equally important is the fact that the holding of both offices may cast reasonable doubt on the judge’s impartiality and further undercut public confidence in the integrity and impartiality of the judiciary. 22 NYCRR 100.2(A).

         Finally, the Committee notes that Town Law § 31(2) requires that non-lawyer judges file with th town clerk, “a certificate of completion of a course of training prescribed by the administrative board of the judicial conference.” Thus, at least in this instance, the judge while wearing one hat would be required to provide documents which the judge while wearing a second hat would be required to receive and file. This merging of roles also undermines the separation of powers and independence of the judiciary.

         For all of the reasons cited, the Committee finds the two positions to be incompatible.