Opinion 03-21

March 6, 2003

Digest:            A village justice should advise the village board of trustees that, as a matter of judicial ethics, it is impermissible for the village justice court clerk to retain that position while simultaneously holding the office of village trustee.

Rule:               22 NYCRR 100.2(A); NY Op. Atty. Gen 84-21.

Opinion:

            A village justice asks whether the justice court clerk may also serve as a member of the village board of trustees.

            The New York State Attorney General has concluded that, pursuant to the common law rule of compatibility of offices, the offices of town council person and clerk of the town justice court are incompatible because the latter is subordinate to the former. NY Op. Atty. Gen. 84-21. In particular, the Attorney General points out that the town board is responsible for establishing the office of court clerk and the court clerk’s salary.

            In this Committee’s view, the positions of village trustee and clerk of the village court are incompatible for basically the same reasons articulated by the Attorney General. Further should the village board allow the same person to serve as village trustee and clerk of the village justice court, the village justice’s ethical responsibilities would be compromised.

            We reach this conclusion primarily because of the judicial obligation to promote public confidence in the integrity and impartiality of the judiciary. 22 NYCRR 100.2(A). A village justice court clerk who also serves as a village trustee would participate in establishing the court budget as well as the village justice’s salary. It is this Committee’s view that the public’s confidence in the integrity and impartiality of the judiciary would be diminished if the court clerk, who is the justice’s subordinate in the court, could at the same time excise authority over the court’s budget and the justice’s salary.

            Although the village justice cannot prevent the clerk of the village justice court from running for elective municipal office, he or she should bring to the attention of the court clerk and to the village board this Committee’s opinion about the ethical implications inherent in allowing the simultaneous holding of both offices.