Opinion 10-93

June 10, 2010

Digest:         A town justice should not permit a town employee who is not subject to the town justice’s supervision and control to transport funds the court receives to the bank for deposit.

Rules:          22 NYCRR 100.3; 100.3(A); 100.3(C)(1) and (2); 214.9(a); Opinions 09-116; 04-135; State Finance Law §99-a(1); Town Law §27(1); Village Law §4-410(1)(b); Uniform Justice Court Act §2021(1); 1983 Ops St Comp No. 83-174.

Opinion:

         A part-time town justice asks whether it is permissible to permit a town employee who is not subject to the town justice’s supervision to transport funds the court receives to the bank for deposit. According to the judge, transporting funds the court receives to the bank for deposit is now the court clerk’s responsibility. However, to cut administrative costs, the town board proposes to have one town employee who is not subject to the town justice’s supervision transport all funds received by town offices to the bank for deposit.

         A judge’s judicial duties take precedence over all the judge’s other activities and include all the duties of a judge’s office prescribed by law (see 22 NYCRR 100.3[A]). In performing these duties, a judge must diligently discharge his/her administrative responsibilities (see 22 NYCRR 100.3 and 100.3[C][1]).

         With respect to bank deposits, the Uniform Rules for the Trial Courts require every town justice to “deposit, as soon as practicable, all monies received in his or her judicial capacity in a separate bank account in his or her name as such judicial officer...” (22 NYCRR 214.9[a]).

         The New York State Comptroller has advised that a town justice is personally responsible for monies that the justice court receives (see 1983 Ops St Comp No. 83-174 [opining that it is therefore “obvious” that a justice must have direct supervision and control over the receipt and handling of the funds]). Such monies must be deposited into the town justice’s separate bank account within 72 hours after receipt (see 22 NYCRR 214.9[a]) and must then be paid to the State Comptroller within the first ten days of the month following collection (see State Finance Law §99-a[1]; Town Law §27[1]; Village Law §4-410[1][b]; Uniform Justice Court Act §2021[1]). In light of this statutory scheme and the town justice’s personal responsibility for the monies received, this Committee previously has advised that a town justice should not permit the town supervisor, mayor, treasurer or village clerk to be a signatory on the town justice’s bank account (see Opinions 09-116; 04-135).

         For similar reasons, it is the Committee’s view that the inquiring town justice should not permit a town employee who is not subject to the town justice’s supervision to transport funds the court receives to the bank for deposit. Such deposits should be made only by the town justice or a court employee subject to the town justice’s supervision and control (cf. 22 NYCRR 100.3[C][2] [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]; 1983 Ops St Comp No. 83-174 [“only court personnel subject to the direction and control of the justice should receive, handle and deposit court monies”]).