Opinion 11-92

September 15, 2011

Please Note: This opinion only addresses the scenario where the municipality “has provided for one judge and two court clerks” in the applicable court. Footnote 2 states: “If there were two judges in the inquirer’s court, this Committee’s prior Opinions would unquestionably preclude him/her from serving as their court clerk (see Opinions 03-22; 98-113 [Vol. XVII]).” More recent opinions addressing the two-judge situation include Opinion 17-58 and Opinion 16-53.

Digest:         (1) A part-time town judge may perform administrative duties normally assigned to a court clerk and may be separately compensated for performing those duties, to the extent it is legally permissible for the part-time town judge to do so, and subject to the Rules Governing Judicial Conduct. (2) Whether a part-time town judge may also be appointed to serve as a co-court clerk is a question of law that is beyond the Committee’s jurisdiction.

Rules:          22 NYCRR 101.1; 100.2; 100.2(A); 100.3; 100.3(A); 100.3(B)(6); 100.3(B)(6)(a)-(e); 100.3(B)(7); 100.3(E)(1); 100.3(F); 100.6(B)(4); Opinion 03-22; 98-113(Vol XVII); 96-116 (Vol XIV); Uniform Justice Court Act §2101(f); Town Law §20(1)(a),(b); Village Law §4-400(c)(ii); Judiciary Law §212(2)(l); 1994 Ops Atty Gen No. 94-29 (1994); 1974 Ops Atty Gen. 307; 1983 Ops St Comp No. 83-174.

Opinion:

         A part-time town judge asks whether he/she may serve as both a court clerk and a judge and receive separate compensation for the duties he/she performs in each capacity.

          According to the inquiring judge, the municipality in which the court is located has provided for one judge and two court clerks in the judge’s court.¹ Two of these three positions are filled by the judge because the municipality has also appointed the judge as a court clerk. The judge states that the two co-court clerks “split the duties between us” and coordinate their schedules to ensure that the court’s office is open to the public at appropriate times. The judge states that his/her responsibilities as clerk include inputting and filing traffic tickets; inputting criminal and civil cases; scheduling hearing dates and trials; answering court telephones to provide general information and instructions to the public about court procedures; accepting monies for fines and fees and writing receipts for such monies received; criminal disposition reporting; electronically filing monthly audit and control reports; and presenting monthly reports to the municipality’s chief fiscal officer.

         The judge further states that he/she does not consider his/her role as court clerk to be a “supervisory” one because the municipality makes all personnel decisions regarding the clerks, including hiring, firing, and salary. The judge further states that differences in the co-clerks’ job titles are “for purposes of payroll” rather than to reflect a hierarchical structure. According to the judge, “[t]he only reason the title is there is for the compensation to perform these clerical duties.” From the judge’s perspective, his/her co-court clerk is the “[o]ne [who] acts as court clerk,” while the judge “act[s] only in the capacity of an office worker performing duties that the court clerk cannot... .”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Part-time judges may accept public employment in a federal, state or municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of their judicial duties (see 22 NYCRR 100.6[B][4]). Nonetheless, a judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]), and the judge must dispose of all judicial matters promptly, efficiently and fairly (see 22 NYCRR 100.3[B][7]) and disqualify him/herself when required (see 22 NYCRR 100.3[E][1]).

         The Committee believes that there is no inherent ethical incompatibility or conflict for a judge to perform administrative and clerical duties in support of his/her judicial duties (see Uniform Justice Court Act §2101[f] [“‘clerk’ means the clerk of the particular court to which this act is being applied, or the non-judicial person performing the functions of such office; if the particular court has no such clerk or non-judicial person, it means the justice of such court”]). Furthermore, the prompt and efficient disposition of matters pending before the judge is an integral part of the judge’s responsibilities (see 22 NYCRR 100.3[B][7]). Therefore, particularly in municipalities with limited resources, it may be necessary and appropriate for a judge to perform certain administrative duties incident to the performance of his/her judicial duties.² Moreover, the Committee can see no ethical reason why a part-time judge cannot accept additional compensation for performing such additional duties.

         In Opinion 03-22 the Committee advised that a town justice who is the sole judge in a town court may not also serve as Court Clerk of his/her own court. In this Opinion, the Committee stated:

If there is only one town justice in the court, the positions are incompatible and inherently in conflict, because the town justice must supervise the court clerk and is required to file certain documents with the court clerk, and the court clerk has separate duties with regard to recording of proceedings and activities of the town justice.

         In the Committee’s view, the facts in the present inquiry are distinguishable. While the inquirer is the only town justice presiding in his/her court, he/she is not the only person performing the duties of a court clerk. Therefore, it is the Committee’s view that as long as the inquirer’s co-court clerk performs any duties that must, by law, be separately supervised or approved by the judge, and as long as the co-court clerk accepts for filing all documents the judge is required by law to file with the Court Clerk, it is not ethically impermissible for the inquiring judge to perform administrative duties normally assigned to a court clerk and, as indicated above, to be separately compensated for doing so.

         However, the inquiring judge must be cognizant of the prohibition against initiating, permitting or considering ex parte communications except as specifically permitted by the Rules Governing Judicial Conduct or by law (see 22 NYCRR 100.3[B][6][a]-[e]). Therefore, in the course of performing administrative or clerical responsibilities, the inquirer must avoid ex parte communications (see 22 NYCRR 100.2[A]; 100.3[B][6]) and seek to minimize the need for disqualification. If a judge believes that his/her impartiality might reasonably be questioned in a particular matter, the judge should consult the Committee and/or the Committee’s prior Opinions to determine whether disqualification or disclosure is required under the circumstances and whether remittal may be permitted (see 22 NYCRR 100.3; 100.3[E][1]; 100.3[F]; Opinion 96-116 [Vol XIV]).

         Whether a judge may also be appointed the court clerk by the municipality in which the court is located (see Town Law §20[1][a], [b]; Village Law §4-400[c][ii]) raises a question of legal compatibility of office which this Committee has no authority to address (see Judiciary Law §212[2][l]; 22 NYCRR 101.1). It appears that the Attorney General has concluded that a town or village justice may “act as his or her own clerk” (1994 Ops Atty Gen No. 94-29) and may even do so for an “increase” in salary while the position of clerk is temporarily eliminated (see 1974 Ops Atty Gen 307) but has also advised that the position of court clerk is subordinate to the office of town justice, rendering the two titles legally incompatible, where “[t]he appointment and discharge of the clerk is subject to approval of the justice and the clerk performs clerical duties delegated by the justice” (1994 Ops Atty Gen No. 94-29; see also 1974 Ops Atty Gen 307 [the clerk “has no independent function whatsoever and is merely the alter ego of the justice to perform delegable routine but non-judicial duties”] and 1983 Ops St Comp No. 83-174 [fines, fees and other moneys payable to a town justice court must be received by a town justice or by personnel under his or her supervision and control and may not be collected by other town personnel in a centralized collection unit]).

         The Committee concludes that the Rules Governing Judicial Conduct do not prohibit a judge from performing most duties of, or acting as, his/her own clerk, and receiving compensation for the duties performed, to the extent the judge is legally and ethically permitted to do so.

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    ¹The judge states that the municipality has changed the staffing of the court over several decades by decreasing the number of judges and increasing the number of clerks. It appears that the responsibilities of judge and clerk were performed solely by judicial officers for at least two decades before the municipality created and funded any court clerk position.

     ²If there were two judges in the inquirer’s court, this Committee’s prior Opinions would unquestionably preclude him/her from serving as their court clerk (see Opinions 03-22; 98-113 [Vol. XVII]).