Opinion 06-01

March 9, 2006

Digest:         The court bailiff of a town court should not serve on the town board.

Rule:            Town Law §§27,69; 22 NYCRR 100.1; 100.3(C)(2); Opinions 98-59 (Vol. XVI); 96-133 (Vol. XV); 96-64 (Vol. XIV); 94-96 (Vol. XII); 91-63 (Vol. VII).

Opinion:

         The two town justices of a town court inform the Committee that it is anticipated that the court’s bailiff will be appointed a member of the town board. As bailiff, his “duties are to handle the sign in sheet, call cases for the court and A.D.A, and maintain order.” Presumably, the bailiff is an employee of the town, but the judges do not state whether their consent or recommendation is required or customary for appointment to the position of bailiff. The bailiff has stated that he would not vote on the “Court’s wage increases.” The judges ask whether, as a town board member the bailiff will be able to continue serving as the court’s bailiff.

         In prior opinions the Committee has considered questions of simultaneous employment by court employees in other positions in the municipal government where the court is located. For example, in Opinion 96-133 (Vol. XV), the Committee concluded that the Chief of Police should not serve as Court Attendant. See also Opinions 98-59 (Vol. XVI); 96-64 (Vol. XIV). The Committee has also considered questions involving disqualification by local judges where appearances are made by parties or attorneys who are members of the town or village board, and has concluded that in such instances, by virtue of the fact that the town or village board fixes the judge’s salary, recusal is required. See Opinions 94-96 (Vol. XII); 91-63 (Vol. VII).

         Here, the question before the Committee does not involve a dual employment situation or court appearances by town board members. It does involve the question of whether the relationship between a particular court employee and the town board gives rise to judicial ethical considerations. In our opinion it does.

         Section 100.3(C)(2) of the Rules Governing Judicial Conduct mandates that a judge require staff, court officials and others subject to the judge’s direction and control to observe judicial standards of fidelity and diligence. 22 NYCRR 100.3(C)(2). The bailiff, as an employee whose duties are directly related to the ongoing activity in the courtroom is clearly a person subject to the direction and control of the justices. As such, the judges have the responsibility of supervising the performance of those duties. Meeting that responsibility is an ethical obligation required by the Rules. 22 NYCRR 100.3(C)(2). In our opinion, the capacity to fully meet that requirement is cast into doubt, as is the independence of the judiciary, where the person subject to direction and control is likewise a person who passes upon the judges’ salaries as well as other expenditures that may be required by the judges in carrying out their judicial responsibilities. Town Law §§ 27, 69; 22 NYCRR 100.1. And, the fact that in this instance, the bailiff as a town board member intends not to vote on the judges’ salaries does not, in our view, alter this conclusion inasmuch as we know of no legal requirement that he refrain from voting should he choose to do so. Nor is it unreasonable to suggest that the public may reasonably perceive that the bailiff is in a position to influence the judges’ salaries even though he/she presently intends not to cast a vote on that issue.

         Accordingly, we advise that the bailiff not serve on the town board. While we are aware that the inquirers may not be in a position to act upon this advice, or achieve the desired result, they are, of course, free to convey the views expressed herein to all parties involved.