Joint Opinion 07-62 and 07-69

April 19, 2007

Digest:         A town justice or village justice may simultaneously serve as the town court clerk in the town court of another town.

Rules:          22 NYCRR 100.3(E)(1); 100.6(B)(4); Opinions 96-116 (Vol. XIV); 95-111 (Vol. XIII); 92-115 (Vol. X); 88-67 (Vol. II).

Opinion:

         Two inquiries raise a similar ethics issue. In one, a part-time town justice contemplates employment as the town court clerk in the town court of an adjoining town. In the other, a town court clerk contemplates running for village justice in a village outside of the town where he/she serves as court clerk. Both inquirers ask whether it would be ethically permissible to commence or retain these judicial offices simultaneously should they be hired or elected to the other position.

          The Rules Governing Judicial Conduct allow part-time judges to accept 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 judicial duties. 22 NYCRR 100.6(B)(4); Opinions 96-116 (Vol. XIV); 95-111 (Vol. XIII); 92-115 (Vol. X); 88-67 (Vol. II).

         Neither situation presented here appears to present incompatible or conflicting non-judicial employment. However, as with any non-judicial employment position held by a part-time judge, instances may arise in the course of the non-judicial employment that require the judge to consider disqualification in a particular case. In such a case, the judge must heed section 100.3(E)(1) of the Rules and other relevant rules and opinions to determine if disqualification is necessary. 22 NYCRR 100.3(E); Opinion 96-116 (Vol. XIV).

         In any event, based on the facts as stated in these inquiries, we conclude that a town justice may serve simultaneously as the town court clerk in the town court of an adjoining town, and a village justice may serve as town court clerk in a town court located in another town.