Joint Opinion 08-219/08-221

December 4, 2008

Digest:         A town or village justice may permit a court bailiff or town court security officer to also work as a county probation officer, but may not permit the court clerk to also work as a county probation officer.

Rules:          Criminal Procedure Law §2.10(1); §2.10(24); §2.20(a),(c)(d); Judiciary Law §403; 22 NYCRR 100.1; 100.2(A); Opinion 06-125; 98-148 (Vol. XVII); 96-64 (Vol. XIV).

Opinion:

         In Inquiry 08-219, a village justice asks whether it is ethically permissible for the village court clerk and the village court bailiff to also work as county probation officers for the same county in which the court is located. Both are responsible for case intake in Person In Need of Supervision, Juvenile Delinquency and Family Offense cases in the Family Court. According to the judge, on average, the county probation department is involved in approximately 12 cases in the village court annually and, during 2008, was involved in only four such cases. In Inquiry 08-221, a town justice asks whether a county probation officer also may work part-time as a town court security officer.

         A judge shall uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]).

         In Opinion 98-148 (Vol. XVII), the Committee advised that it is not improper for local police officers and peace officers to provide security services in a town or village court. In fact, the Committee noted that Judiciary Law §403 requires the sheriff of each county outside New York City to assign constables or deputy sheriffs to attend when courts are in session. A probation officer also is a peace officer (see Criminal Procedure Law §2.10[24]) and, therefore, may serve as a court security officer as well.

         A different result is warranted, however, with respect to a court clerk also serving as a probation officer. In Opinion 06-125, the Committee advised that a town justice may hire as court clerk an individual who also is employed as a clerk with the probation department in the same county in which the town justice presides. The Committee specifically noted that the duties to be performed by the court clerk for the probation department, as described by the judge, included logging in, recording and dispatching incoming telephone calls and incoming cases; reconciling bank statements; disbursing restitution payments; and performing general clerical duties (see id.). In the Committee’s view, duties of such a routine nature would not compromise the impartiality of the court (see id.).

         In contrast, in Opinion 96-64 (Vol. XIV), the Committee advised that a court clerk may not also be employed as a town constable. The Committee noted that constables are peace officers (see Criminal Procedure Law §2.10[1]) who may perform such local law enforcement functions as making warrantless arrests and searches, and issuing uniform appearance tickets (see Criminal Procedure Law §2.20[1][a], [c] and [d]). Although the court clerk in Inquiry 08-219 is responsible for case intake in Person In Need of Supervision, Juvenile Delinquency and Family Offense cases in the Family Court, he/she is also a peace officer (see Criminal Procedure Law §2.10[24]) authorized to perform law enforcement functions (see §2.20). Therefore, in the Committee’s view, such dual employment by a court clerk would impair the independence of the judiciary and could reasonably cause the judge’s impartiality to be questioned (see 22 NYCRR 100.1; 100.2[A]). And, consequently, the judge in Inquiry 08-219, may not permit his/her court clerk to be employed also as a probation officer, even though the probation department appears in the judge’s court only infrequently.