Opinion 05-04

March 10, 2005

Digest:         On the facts presented, there is no ethical prohibition preventing a village justice from being employed in an appointive clerical position in the office of the village clerk, subject to certain safeguards.

Rule:            22 NYCRR 100.3(E)(1) (c);100.6(B)(4); Opinion 96-92 (Vol. XIV).

Opinion:

         A village justice inquires whether it is permissible to accept part-time employment in the village clerk’s office where the duties would be strictly clerical in nature, such as answering the telephone, accepting payments for taxes and water bills, and performing other general office tasks. The judge would refrain from involvement in court matters while on duty at the clerk’s office including engaging in any ex parte communications.

         Section 100.6(B)(4) of the Rules Governing Judicial Conduct states that a part-time judge “may accept private 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.”

         In considering that provision, the Committee previously opined that a part-time town justice could not also serve as town clerk because the two offices were deemed incompatible under an analysis of applicable Town Law provisions barring the holding of two elective offices. See Opinion 96-92 (Vol. XIV). Even assuming that the same restrictions might apply in a village, the facts presented in this inquiry are distinguishable, inasmuch as the prospective employment is an appointive clerical position in the clerk’s office, not the elective office of “clerk.” Therefore, based upon the facts as presented, the Committee finds that as a matter of judicial ethics the judge may seek such employment, subject to appropriate safeguards to ensure that the judge insulates himself/herself from directly or indirectly engaging in any involvement in pending or impending court matters while on duty in the clerk’s office. We do note, however, that should the village be a party in a matter before the judge, a question of disqualification would be present. 22 NYCRR 100.3(E)(1)(c).