Opinion 06-125

October 19, 2006

Digest:         On the facts presented, it is permissible for a town justice to hire as court clerk an individual who also will be employed as a clerk with the probation department in the same county in which the town justice presides.

Rules:          22 NYCRR 100.2(A); Opinion 04-118; 98-59 (Vol. XVII); 96-64 (Vol. XIV); 95-77 (Vol. XIII).

Opinion:

         A town justice asks whether it is permissible to hire as a court clerk an individual who also will be employed as a clerk with the probation department, in the same county in which the town justice presides.

         Pursuant to the Rules Governing Judicial Conduct, a judge must at all times act in a manner that promotes public confidence in the integrity and impartiality of the judiciary. 22 NYCRR 100.2(A). In applying that provision, this Committee previously concluded that it is not permissible for the court clerk of a town or village court to also be employed as the “secretary” for a police academy who attends training exercises and even participates in a “role playing” capacity (Opinion 04-118); as the dispatcher for the village police department (Opinion 98-59 (Vol. XVII)); as a town constable (Opinion 96-64 (Vol. XIV)); or as the receptionist for a law firm that occasionally appears in the justice’s court and one member of which is a town justice (Opinion 95-77 (Vol. XIII)). In each instance, the Committee concluded that the court clerk’s outside employment might implicate the impartiality of the judiciary. In contrast, the duties of the court clerk in his/her role as a clerk at the probation department do not appear to fall within this category.

         The inquiring town justice describes the court clerk’s duties with the probation department as logging in, recording and dispatching incoming telephone calls and incoming cases; reconciling probation department bank statements; balancing probation department books; disbursing restitution payments; and performing general clerical duties. Duties of such a routine nature would not compromise the impartiality of the court. It is, therefore, permissible for the town justice to hire as court clerk an individual who also will be employed as a clerk with the probation department, in the capacity described, in the same county in which the town justice presides.