Opinion 03-22

April 15, 2003

Digest:         A town justice may serve as bookkeeper to the Town Supervisor, but should not serve as clerk of the town court, secretary to the Town Planning and Zoning Boards, or secretary to the town Codes Enforcement Officer.

Rules:          22 NYCRR 100.2(A); 100.3(E)(1); 100.4(A); 100.6(B)(4); Opinions 90-37 (Vol. V); 95-106 (Vol. XIII); 96-35 (Vol. XIV); 98-113 (Vol. XVII); 98-116 (Vol. XVII); 01-43

Opinion:

         A town justice inquires whether the court clerk of the town justice court, who is also the bookkeeper to the Town Supervisor, secretary to the Planning and Zoning Boards, and secretary to the Codes Enforcement Officer - - all part-time positions in the same town - - may continue serving in those positions if elected or appointed to the position of town justice.

         A number of different provisions of the Rules Governing Judicial Conduct are to be examined in connection with the overall question of dual or multiple employment involving part-time judges. In particular, section 100.6(B)(4) of the Rules Governing Judicial Conduct provides that a part-time judge “may accept . . . public employment in a . . . municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the performance of the judge’s duties.” 22 NYCRR 100.6(B)(4). Further, a judge shall conduct all extra-judicial activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, or interfere with the proper performance of judicial office. (22 NYCRR 100.4[A]), and shall recuse himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). In addition, a judge shall avoid impropriety and the appearance of impropriety and “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” 22 NYCRR 100.2(A).

         Pursuant to these Rules the Committee concludes that (1) a town justice may be employed as bookkeeper to the town supervisor, but recusal is required in cases involving the town or the supervisor. Opinion 90-37 (Vol. V). (2) A town justice should not serve as clerk of the same town justice court. If there is only one town justice in the court, the positions are incompatible and inherently in conflict, because the town justice must supervise the court clerk and is required to file certain documents with the court clerk, and the court clerk has separate duties with regard to recording of proceedings and activities of the town justice. If there is more than one town justice in the court, the Committee has held, a town justice may not be employed as deputy court clerk for a co-justice in the same court, as that would create a conflict and an appearance of impropriety, in violation of section 100.2(A). Opinion 98-113 (Vol. XVII). (3) A town justice should not serve as secretary to the Planning and Zoning Boards in the same town as the town justice court. The Committee has repeatedly stated that the offices of town or village justice and member of a planning or zoning board of the same municipality are incompatible, since zoning and planning board decisions are commonly enforced in the town justice court, regardless of whether challenges are heard in that court or enforcement is in the name of the board. See, Opinion 96-35 (Vol. XIV). Although a secretary to the Planning and Zoning Boards does not have the authority of a member of a board, the position of secretary involves loyalty, confidentiality, and a close working relationship with the board; this is sufficient to apply to the secretary the same conclusion that applies to the members of the board. (4) A town justice should not serve as secretary to the town’s Codes Enforcement Officer. The Committee has held that a part-time judge may not serve as a dispatcher for the county Sheriff’s Department, as the dispatcher “will be continually involved with sheriff’s activities on a local basis. The sheriff and his or her deputies will unquestionably be commencing proceedings in the judge’s court, many of which may arise out of contacts with and through the dispatcher.” Opinion 98-116 (Vol. XVII); See also Opinions 95-106 (Vol. XII) [911 dispatcher]. The Committee has also held that the clerk to a village’s police department may not be a village justice in the same village. Since “the nature of the work involves the employee in ongoing police activity, there is a fundamental incompatibility between the two positions” Opinion 01-43. The Committee considers a secretary to a Codes Enforcement Officer sufficiently involved in the Code Enforcement Officer’s ongoing enforcement operations - - including, as in the case of a dispatcher, the secretary’s receiving and transmitting complaints - - so that the same result should apply.