Opinion 11-25

March 9-10, 2011

Digest:        A town justice should not hire as the court’s part-time clerk an individual who would be concurrently employed as Principal Clerk of Patrol Operations for the county sheriff’s department, where the sheriff’s clerk performs more than routine clerical duties and has frequent contact with local justice courts.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(C)(2); Opinions 10-67; 10-20; 09-178; 09-127; 06-125; 04-118; 01-43 (Vol. XX); 98-59 (Vol. XVII); 96-64 (Vol. XIV).

Opinion:

         A town justice asks whether he/she may hire an individual to serve as part-time court clerk who would, if hired, continue his/her current employment as the Principal Clerk of Patrol Operations for the local county sheriff’s department. The judge has submitted information indicating that the individual’s job responsibilities with the sheriff’s department include, along with many more routine clerical duties: acting as a “liaison to the Local Court Judges inquiring about court paperwork and appearances;” assisting the Captain of Patrol with budget preparations; ordering and issuing equipment for the patrol division; supervising the scheduling of assignments for special details; “[b]ill[ing] various town and village courts for security provided by our deputies;” and assisting in the annual Police Benevolent Association award process by setting up the nominating committee, collecting the nominations, scheduling selection meetings, typing award announcements, and then “award[ing] appropriate medals, citations, etc.”

         A judge must avoid even the appearance of impropriety in all of the judge’s activities (see 22 NYCRR 100.2) and 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]). A judge also must require court personnel subject to the judge’s direction or control to observe the standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C][2]).

         Although limitations on the extra-judicial conduct of a judge do not automatically apply to court personnel (see Opinion 09-127), 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” (Opinion 96-64 [Vol XIV]; accord Opinions 10-67 and 98-59 [Vol. XVII]).

         The Committee has previously advised that it is permissible for a town justice to hire as a court clerk an individual who is also employed as a clerk with the county probation department (see Opinion 06-125). In that opinion, the Committee noted that the court clerk’s duties with the probation department, as described by the judge, included logging, recording and dispatching incoming telephone calls and incoming cases; reconciling probation department bank statements; balancing probation department books; disbursing restitution payments; and performing general clerical duties (see id.). Under the circumstances presented, the Committee concluded that “[d]uties of such a routine nature would not compromise” the real or apparent impartiality of the court (id.).

         However, the Committee also has previously advised that it is not permissible for a village court clerk to be concurrently employed as “the ‘secretary’ for a police academy” sponsored by the village police department when his/her responsibilities would include participating in training exercises “in a ‘role playing’ capacity” (Opinion 04-118). The Committee concluded that the candidate’s “connection with and active participation in the training of the very police officers who will come into the court could readily cause the court’s impartiality to be questioned” (id.).

         Similarly, the Committee advised that a village court clerk should not also be employed as the dispatcher for the village police department (see Opinion 98-59 [Vol. XVII]). The Committee emphasized that “where the nature of the work involves the employee in ongoing police activity in which the employee is a participant and of which the employee is acquiring knowledge in ‘real time,’ there is a fundamental incompatibility between the two positions” (id.).

         Likewise, in Opinion 01-43 (Vol XX), the Committee advised that a village justice should not hire as clerk of the village court a person who is also clerk of the village police department. Ordinarily, a village police department is involved in every stage of investigating and prosecuting offenses that may be prosecuted in the village court. In the Committee’s view, to permit a village court clerk who “essentially has unrestricted access to [Justice] Court files” (Opinion 10-67; accord Opinion 10-20), to be involved in ongoing law enforcement activity of the village police department, even in a clerical capacity, would diminish public confidence in the judiciary’s integrity and impartiality (see Opinion 01-43 [Vol. XX]).

         Here, the Principal Clerk of Patrol Operations also has additional potential for incompatibility and inherent conflicts due to his/her role as “liaison” to the local justice courts on court paperwork and appearances, as well as his/her role in billing local courts for security services provided by deputy sheriffs (see Opinion 09-178 [explaining why roles such as town justice and town clerk for the same municipality, or town justice and administrator of the county’s assigned counsel program, are inherently incompatible]).

         Therefore, under the circumstances presented, a town justice should not hire a Principal Clerk of Patrol Operations to serve as part-time clerk of the town court.