Opinion 05-38

April 20, 2005

Digest:         A Supreme Court Justice’s Principal Law Clerk may run for and serve on the County Legislature, provided that (i) during the campaign and during the law clerk’s term of office, in cases where the County is involved, the judge discloses on the record the law clerk’s dual employment and insulates the law clerk; and, (ii) the law clerk obtains the proper administrative permission to engage in dual employment, in accordance with Section 50.3 of the Rules of the Chief Judge.

Rules:          22 NYCRR 50.3; 100.5(C); Opinions 04-104; 01-35 (Vol. XX); 99-10 (Vol. XVII).

Opinion:

         A Supreme Court Justice asks whether it would be ethically permissible for his/her Principal Law Clerk to run for and serve on the County Legislature, a part-time, paid elective office.

         Section 100.5(C) of the Rules Governing Judicial Conduct expressly allows a judge’s personal appointee to contribute to his or her own campaign for office, thus making clear that a judge’s personal appointee may seek elective office. See 22 NYCRR 100.5(C); see also Opinion 04-104.

         This Committee has previously examined whether a personal appointee of a judge may simultaneously serve as an elected official. For example, the Committee has said that a law clerk may simultaneously serve as an elected public school board member, provided that the “new obligations as an elected official do not interfere with his/her court duties.” Opinion 99-10 (Vol. XVII). The Committee has also said that it is not unethical for a Supreme Court Justice’s law clerk to serve on a town council, “provided that such service does not adversely affect the law clerk’s official duties and the judge’s judicial position...” Opinion 01-35 (Vol. XX).

         The judge, therefore, may allow his/her law clerk to run for and serve on the County Legislature, provided that the law clerk’s campaign activities and duties as a County Legislator do not interfere with his/her official duties as a law clerk and do not adversely affect the judge’s judicial position. See Opinion 01-35 (Vol. XX). In addition, pursuant to section 50.3 of the Rules of the Chief Judge, the law clerk must obtain the written consent of his/her appointing authority, subject, however to the approval by the Chief Administrative Judge. 22 NYCRR 50.3. The judge should advise his/her law clerk to contact the appropriate authorities within the Office of Court Administration with the authority to interpret Rule 50.3 to learn the scope and nature of his/her obligations to comply with that rule.

         If the law clerk is elected to the County Legislature, the judge must consider disclosure of the nature of the law clerk’s dual employment, insulation of the law clerk and recusal in cases where the County is involved, either directly or indirectly. Opinion 01-35 (Vol. XX).

Note on terminology: The term "town council" as used in prior Opinions is synonymous with "town board."