Opinion 04-130

December 2, 2004

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

Digest:         (1) A court attorney in Family Court, may become a candidate for and serve on a town council, provided such service does not adversely affect the court attorney’s official duties or the judge’s judicial position, and the court attorney obtains permission for such dual employment pursuant to section 50.3 of the Rules of the Chief Judge. (2) A court attorney-referee may not become a candidate for and serve on a town council.

Rule:            22 NYCRR 50.3; 100.5; 100.5(B); 100.6(A); Opinions 01-35 (Vol. XIX); 98-46 (Vol. XVII); 98-64 (Vol. XVII)

Opinion:

         A supervising judge seeks guidance on whether a court attorney or a court attorney-referee employed in Family Court may serve as a part-time member of a town council.

         The Committee previously determined in Opinion 01-35 (Vol. XIX) that it was permissible 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 or the judge’s judicial position, and the law clerk obtains permission for such dual employment pursuant to then section 25.3 (now section 50.3) of the Rules of the Chief Judge. The Committee sees no distinction between a court attorney in the Supreme Court and one serving in Family Court, and therefore we adhere to the views expressed in Opinion 01-35.

         In the opinion of the Committee, however, a court attorney-referee may not run for and serve as a member of a town council. A court attorney-referee is defined as “quasi-judicial” official. Opinion 98-46 (Vol. XVII). As such, the requirements of section 100.5 of the Rules Governing Judicial Conduct are applicable, subjecting the court attorney-referee to the same restrictions as a judge in seeking election to any non-judicial office. 22 NYCRR 100.6(A). Section 100.5(B) provides that ‘[a] judge shall resign from judicial office upon becoming a candidate for elective non-judicial office either in a primary or in a general election . . . “ The office of town councilman is an elective non-judicial office. Therefore, it follows that a court attorney-referee would be required to resign from his/her position prior to seeking election to a non-judicial office such as town councilman. Opinion 98-64 (Vol. XVII).