Opinion 01-35

April 19, 2001

NOTE: The Chief Judge’s rules concerning dual employment and political activities of nonjudicial court employees now appear at 22 NYCRR 50.3 and 50.5, respectively.  For guidance on Part 50 (formerly Part 25), court personnel may consult the Office of Court Administration’s Nonjudicial Ethics Helpline (888-283-8442).

Note on terminology: This Opinion uses the term "town council" as a synonym for "town board."

Digest:         It is not unethical for a Supreme Court Justice's law clerk to become a candidate for and serve on a town council, provided that such service does not adversely affect the law clerk's official duties and the justice's judicial position, and the law clerk obtains permission for such dual employment pursuant to section 25.37 of the Rules of the Chief Judge.

Rule:            22 NYCRR 25.37; 25.39; 100.3(C)(3); 100.5(C); Opinions 99-10 (Vol. XVII); 97-69 (Vol. XV); 94-19 (Vol. XII).

Opinion:

         A Supreme Court justice inquires whether there is any ethical impediment to the justice's law clerk becoming a candidate for and serving as a member of a town council. If the law clerk does serve on the town council, the judge will exercise recusal in any cases that come before the judge in which the town is a party.

         Section 100.5(C) of the Rules Governing Judicial Conduct prohibit a judge's personal appointee from engaging in the following political activities: (1) holding elective office in a political organization, subject to a stated exception, (2) contributing cash or other consideration in amounts in excess of $500 annually to political campaigns in general other than the appointee's own campaign, (3) soliciting funds for a partisan political purpose or engaging in other political fund-raising, and (4) engaging in political conduct prohibited by section 25.39 of the Rules of the Chief Judge (22 NYCRR 25.39) which prohibits holding an elective office in a "political organization."

         In considering the permissible scope of extra-judicial activities of a judge's personal appointee, the Committee has previously said that a law clerk may be a candidate for and may serve on a school board provided that new obligations as an elected official do not interfere with his/her court duties. Such service is neither practicing law, which is prohibited by section 25.40 of the Rules of the Chief Judge, nor engaging in political activity prohibited by section 100.5(C) of the Rules Governing Judicial Conduct. Opinions 99-10 (Vol. XVII); 97-69 (Vol. XV); 94-19 (Vol. XII). For the same reasons and with the same proviso, there is no perse ethical barrier to a law clerk becoming a candidate for and serving as a member of a town council. The law clerk must, however, receive written approval of his/her appointing authority, subject to approval by the Chief Administrator of the Courts, before assuming town council membership. 22 NYCRR 25.37. Indeed, nothing stated herein is intended to foreclose or restrict the exercise of administrative authority contemplated by the Rules of the Chief Judge.

         In that connection, should permission be granted, the inquiring judge must ensure that the law clerk's candidacy and duties as a town council member do not adversely impinge upon the law clerk's official duties and that the law clerk does not assume a position of such high political visibility as to adversely affect the judge's judicial position. 22 NYCRR 100.3(C)(3).

         Further, although the judge intends to exercise recusal in matters where the town is a party, there may be other instances where the town is not a party, but town ordinances or other circumstances involving the town are involved. Although such circumstances have not been presented to us, the judge should be aware that, depending upon the particular facts, recusal, or disclosure or insulation of the law clerk may be in order.