Opinion 09-184

October 22, 2009

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A part-time judge who presides in a justice court may permit the court clerk to also serve as an elected part-time county coroner.

Rules:          Town Law §20(a),(b); 22 NYCRR 100.1; 100.2; 100.2(A); 100.3(C)(2); 100.3(E)(1); 100.3(F); 100.5(C); Opinions 01-07 (Vol. XIX); 92-10 (Vol. IX); 91-80 (Vol. VIII).

Opinion:

         A part-time judge who presides in a justice court asks whether the judge may permit his/her court clerk to also serve as an elected part-time county coroner in the same county where the judge’s court is located.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) 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 addition, a judge must require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C][2]). While a judge must prohibit members of the judge’s staff who are personal appointees from engaging in certain political activities (see 22 NYCRR 100.5[C]), court clerks in justice courts are not the judge’s personal appointees (see Town Law §20 [a],[b]; Opinion 91-80 [Vol. VIII]) and, therefore, are not subject to those limitations. Nevertheless, a judge who presides in a justice court must ensure that the court staff refrains from engaging in any activities that could impair public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.1; 100.2[A]; Opinions 92-10 [Vol. IX]; 91-80 [Vol. VIII]).

         It is the Committee’s view that a part-time town or village justice need not prohibit the court clerk from running for election as, or serving as, a part-time county coroner while also serving as court clerk. The Committee believes that the county coroner’s activities would not involve the justice court and, therefore, the court clerk’s service in that capacity would not impair public confidence in the integrity and impartiality of the judiciary. Nevertheless, the judge must forbid the court clerk from engaging in political activities or outside employment on court time, in the court facility, or using court resources, and must instruct the clerk to make clear that his/her political activities and outside employment have nothing to do with the judge or the court (see Opinion 91-80 [Vol. VIII]). And, the judge must disqualify him/herself should the court clerk appear in the judge’s court in the court clerk’s capacity as coroner (see 22 NYCRR 100.3[E][1]). The judge’s disqualification is subject to remittal pursuant to section 100.3(F) of the Rules Governing Judicial Conduct unless the judge believes he/she cannot be impartial. However, remittal is not available if any party is unrepresented (see Opinion 01-07 [Vol. XIX]).

         This Opinion addresses only the extent to which the court clerk’s outside employment implicates the inquiring judge’s responsibilities pursuant to the Rules Governing Judicial Conduct. The court clerk is responsible for ensuring that he/she is in compliance with any applicable administrative or legal requirements imposed by either the local municipality or the county with respect to his/her dual employment and/or political activities.