Opinion 10-67

April 22, 2010

Digest:         A village justice should not permit the clerk of the village court to also work as a park ranger for the same village.

Rules:          22 NYCRR 100.1; 100.2(A); 100.3(C)(2); Opinions 10-20; 08-56; 98-59 (Vol. XVII); 96-64 (Vol. XIV); 92-09 (Vol. IX).

Opinion:

         A village justice asks whether he/she may permit the part-time village court clerk to work also as part-time park ranger for the same village. The judge advises that the court clerk has access to all court files in the course of his/her employment with the village court, including those dealing with violations committed in village parks. The court clerk also answers the court telephone, serves as a translator for the court at criminal arraignments, and is frequently present at sessions in the judge’s courtroom. The judge further advises that, as a park ranger, the clerk would wear a uniform and patrol village parks two days weekly, carrying a walkie-talkie or other communications device for reporting “any suspicious activity and any incidents [he/she] believes to be violations of the law” to the village police department. The judge indicates that a village park ranger does not carry weapons or handcuffs and has no authority to arrest anyone or issue summonses. The judge also indicates that violations committed in village parks are adjudicated in the village court and park rangers may be called as witnesses.

         A judge must 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 addition, a judge “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” (22 NYCRR 100.3[C][2]).

         The Committee previously has advised that a part-time judge may accept employment as a town park manager (see Opinion 92-09 [Vol. IX]) or as a mechanic for the New York State Office of Parks, Recreation and Historic Preservation (see Opinion 08-56). However, the position of park ranger, unlike that of town park manager or mechanic, appears to require a close association with law enforcement personnel. For example, according to the inquiring judge, the park ranger will engage in foot patrols and report any suspicious activity or incidents that he/she believes to be violations of the law to the village police department.

         Although the Committee recognizes that “not every ethical rule applicable to judges necessarily applies with the same force to staff members” (Opinion 96-64 [Vol. XIV]; accord Opinion 98-59 [Vol. XVII]), the Committee nevertheless has recognized the strong appearance of impropriety and/or partiality “where the extra-judicial office referred to is one which directly involves the enforcement of local laws, and ... the court in which the clerk is employed has jurisdiction in this area” (id.). Therefore, the Committee has advised that a village judge should not consent to the appointment of a court clerk who would also be employed by the village police department as a radio dispatcher as such employment would “involve[] the employee in ongoing police activity in which the employee is a participant and of which the employee is acquiring knowledge in ‘real time,’” thus making the two positions “fundamentally” incompatible (Opinion 98-58 [Vol. XVII]). Therefore, “to allow the police dispatcher to serve as court clerk would erode ‘public confidence in the integrity and impartiality of the judiciary’” (id.).

         Likewise, in Opinion 10-20, the Committee advised that a town judge should not permit a part-time assistant clerk of the Town Court, whose primary job was to assist the town court clerk with data entry, to serve simultaneously as a part-time constable in the same town. The Committee noted that the proposed outside employment would result in a law enforcement officer reporting to the court clerk and would afford such officer direct access to court records. The Committee concluded that “such dual employment may cause the judge's impartiality to reasonably be questioned and may compromise the public's confidence in the integrity and impartiality of the judiciary,” and, therefore, the employment was prohibited (see id.).

         Similarly, the inquiring judge should not permit the village court clerk to also work as a village park ranger. The village court clerk essentially has unrestricted access to Village Court files, including files relating to violations that occur in local parks, and is frequently present in the courtroom to provide translation services during criminal arraignments, especially on weekends. Meanwhile, the clerk’s duties as a village park ranger would give him/her first-hand knowledge of suspicious or illegal activity in the village parks, much like the police dispatcher in Opinion 98-59 (Vol. XVII), especially because such allegedly improper conduct may be prosecuted in the Village Court and could even require the ranger to testify. Under these circumstances, a village justice’s impartiality could reasonably be questioned if he/she permitted the village court clerk to serve as a park ranger for the same village.