Opinion 10-116

October 28, 2010

Digest:         A town judge may permit the town court clerk to serve as a town election inspector/poll manager, even if the judge’s name appears on the ballot, but should instruct the town court clerk that he/she may not engage in any political activities in court facilities or on court time and that the court clerk must make clear that his/her political activities have nothing to do with the judge or the court.

Rules:          Election Law 3-400(6); 8-304(1); Town Law §20 (a),(b); 22 NYCRR 50.1; 100.1; 100.2(A); 100.3(C)(2); 100.5(C); Opinions 10-67; 10-19; 09-127; 07-214; 03-44; 92-10 (Vol. IX); 91-80 (Vol. VIII).

Opinion:  

         A town justice asks whether the town court clerk may serve as an election inspector/poll manager for the same town. The judge states that the clerk “has been told [by the Board of Elections] there is no conflict of interest, as electioneering at a poll site is illegal and not tolerated.” The judge also asks whether the clerk may continue to serve in his/her capacity as an election inspector/poll manager if the town judge’s name appears on the ballot as a candidate for re-election.

         A judge must act at all times in a manner that promotes public confidence in the judiciary’s integrity and impartiality(see 22 NYCRR 100.2[A]), and shall 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]). It is clear, however, that the limitations on the extrajudicial conduct of a judge do not automatically apply to court employees (see e.g. Opinions 10-67; 09-127), particularly a town court clerk who is not the judge’s personal appointee (see Town Law §20[a],[b]; Opinion 91-80).

         In the Committee’s view, the outside employment of a town court clerk by a county board of elections does not, in and of itself, create an appearance of impropriety. To the contrary, this Committee has previously advised that a town judge may accept outside employment with a county board of elections, even if the position amounts to a political party designation, as long as the position will not involve the judge in prohibited political activities (see Opinions 07-214 [acting village justice may also serve as an election machine custodian]; 03-44 [deputy commissioner of elections may also serve as town justice]). However, the judge must instruct the court clerk to avoid any appearance that his/her outside employment activities as an election inspector/poll manager are approved by or associated with the town court (see Opinion 91-80 [Vol. VIII] [noting that the “judge should instruct the clerk to make clear that any political activities of the clerk have nothing to do with the judge or the court”]). Subject to that instruction, the Committee sees no ethical reason why the town court clerk cannot continue to serve as an election inspector even if the town judge’s name appears on the ballot as a candidate for re-election, as long as the clerk is legally qualified to serve (see e.g. Election Law 3-400[6] [among other qualifications, election inspectors may not be “a candidate for any public office to be voted for by the voters of the district in which he is to serve, or the spouse, parent, or child of such a candidate”]).

         The Committee notes that it has previously advised that a town justice should not participate as a “non-partisan and essentially non-political” election observer in the town where the judge presides when certain town government employees cast their votes for or against unionization, as the judge would be “actively assisting a governmental entity to enforce the fairness of the voting process by identifying eligible voters, challenging voters and ballots for good cause, and reporting apparent irregularities to the Board’s agent” (Opinion 10-19). Under those circumstances, the Committee believed that the judge could easily become involved in a local controversy and that the judge’s involvement in the union vote could cast doubt on the judge’s ability to act impartially as a judge (see id.).

         Although it appears in the present inquiry that the court clerk’s responsibilities as an election inspector/poll manager are similar to those described in Opinion 10-19 (see e.g. Election Law 8-304[1] [election inspectors must “satisfy themselves” that a prospective voter’s signature is the same as that on file or else they must “challenge the applicant forthwith”]), the Committee has not previously advised that non-judicial employees must avoid activities that are likely to generate public controversy and declines to do so here.

         While a judge must prohibit members of his/her 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]) and, therefore, are ordinarily not subject to those limitations (see e.g. Opinion 91-80 [Vol. VIII] [town court clerk who is not judge’s personal appointee may engage in political activities outside of working hours and away from court facilities]).¹ Nevertheless, a judge presiding in justice court must ensure that its staff refrains from any activities that could impair public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.1; 100.2[A]).

         Therefore, the inquiring judge may permit his/her court clerk to serve as a town election inspector/poll manager, but must advise the court clerk that he/she may not engage in any political activities in court facilities, or on court time, and must avoid any appearance or implication that his/her political activities are related to the judge or the court (see Opinion 92-10 [Vol. IX]).

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            ¹Part 50 of the Rules of the Chief Judge sets forth the Rules Governing Conduct for Nonjudicial Court Employees. The Committee understands that the Office of Court Administration does not consider Part 50 to be applicable to nonjudicial employees of the town and village justice courts. Nevertheless, as these courts are part of the Unified Court System, the Committee believes that town and village justices should encourage such employees to be guided by these rules to ensure their own ethical conduct (see 22 NYCRR 50.1).