Opinion 12-30

March 8, 2012

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A part-time judge may be employed as clerk to the county legislature and may, in that capacity, attend the year-end majority caucus solely to seek the nomination for reappointment as clerk for the following year.

Rules:          County Law § 411; 22 NYCRR 100.0(A); 100.2; 100.2(A); 100.3(E)(1); 100.3(F); 100.5(A)(1)(I); 100.5(A)(1)(c), (g); 100.5(B); 100.6(B)(4); Opinions 11-141; 11-64; 09-138; 08-56; 06-157; 03-22; 97-86 (Vol. XVI); 94-10 (Vol. XII); 90-134 (Vol. VI); 90-92 (Vol. VI); 89-30 (Vol. III); 87-25 (Vol. I).

Opinion:

         A part-time judge asks whether he/she may accept or continue employment as clerk of the county legislature and, in that capacity, “attend the majority caucus” once per year, solely “for the purpose of [his/her] nomination for reappointment” as clerk. The judge describes reappointment as a two-step process. First, the clerk attends a year-end majority caucus meeting which is run by the majority party’s county chair; the clerk submits his/her resume and attends solely for the purpose of seeking the party’s nomination for reappointment. The clerk does not run the meeting, take notes, or count votes.¹ Second, the newly nominated clerk schedules the first public meeting of the full legislature for the year and runs that meeting until the legislature elects and swears in a chairperson. At that point, the newly elected chairperson takes over the meeting, and the full legislature votes on the clerk’s reappointment.

         Outside of the two-step reappointment process as described, the judge states that the clerk’s primary duties are to schedule meetings for the county legislature and to take the minutes at such meetings. The clerk is not otherwise involved in the legislative process or in political party affairs.

         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]). A judge must not directly or indirectly engage in any political activity except as authorized by the Rules Governing Judicial conduct or by law (see 22 NYCRR 100.5[A][1][I]). Among other restrictions, a judge is specifically prohibited from engaging in partisan political activity (see 22 NYCRR 100.5[A][1][c]) and attending political gatherings (see 22 NYCRR 100.5[A][1][g]). A part-time judge may accept public employment in a federal, state or municipal department provided such employment is not incompatible with judicial office and does not conflict with performance of the judge’s judicial duties (see 22 NYCRR 100.6[B][4]). A judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), subject to remittal in appropriate circumstances (see 22 NYCRR 100.3[F]).

         The Committee has advised that a part-time judge may serve as counsel to the vice-chair of a legislative commission on critical transportation choices (see Opinion 87-25 [Vol. I]); associate staff counsel to the New York State Assembly Committees on Agriculture and Commerce (see Opinion 89-30 [Vol. III]); clerk to the board of education (see Opinion 90-134 [Vol. VI]); secretary to the local youth recreation commission (see id.); and bookkeeper to the town supervisor of his/her town (see Opinion 03-22). Although the employer in each of these prior Opinions was a state or municipal department in the executive or legislative branch, it is clear that in each instance the proposed employment was not deemed ethically incompatible with the judicial role; did not involve the judge in impermissible political activity; and did not otherwise create an appearance of impropriety.

         By contrast, the Committee has advised that a part-time judge may not accept employment as counsel to a State Senator (see Opinion 97-86 [Vol. XVI]); may not serve as a Community Liaison Representative in the local office of a member of the Assembly (see Opinion 94-10 [Vol. XII]); may not serve as counsel to the Minority Conference of a county legislature (see Opinion 06-157); and may not serve out his/her remaining term as a member of the town council (see Opinion 90-92 [Vol. VI]). These employment activities were impermissible because they would involve the judge directly in partisan political activities such as servicing constituents (see Opinions 97-86 [Vol. XVI] [primary functions of the position include service to constituents of a partisan political nature]; 94-10 [Vol. XII] [judge would meet with local constituents and report back to assemblyman] or “would inevitably involve the judge in impermissible, partisan political activity” (Opinion 06-157). Here, however, the duties of the clerk of the county legislature, as set forth by the judge, present no such involvement.

         The clerk’s work here is essentially clerical; the clerk is not authorized to join in legislative deliberations and does not act on behalf of individual legislators or their constituents. Nor does it appear likely that the county legislature would be involved in any matter before the judge’s town court. Accordingly, under the facts presented, the Committee concludes that the proposed employment is permissible (see generally Opinions 03-22; 90-134 [Vol. VI]; 89-30 [Vol. III]; 87-25 [Vol. I]). The judge should, however, disqualify him/herself if a member of the county legislature appears in his/her court (see 22 NYCRR 100.3[E][1]; Opinions 11-141 [judge who is employed as a truck driver and laborer with the Town Department of Public Works “may not preside in any cases involving the Department of Public Works”]; 08-56 [judge who is employed as a mechanic with the New York State Office of Parks, Recreation and Historic Preservation “is disqualified from presiding in proceedings involving fellow employees of the agency’s regional office, subject to remittal”]; 03-22 [where town justice is employed as bookkeeper to the town supervisor, “recusal is required in cases involving the town or the supervisor”]; 90-134 [Vol. VI] [judge may serve as the clerk of the board of education and as secretary of the local youth recreation commission, “provided that the judge not preside over any cases involving these groups”). Such disqualification is subject to remittal, unless a party to the proceeding is unrepresented (see 22 NYCRR 100.3[F]; Opinion 08-56; see also generally Opinion 09-138 [describing the remittal process]).²

         The Committee believes that the judge, as legislative clerk, may also participate in the reappointment process as described by the judge. Although the judge/clerk must attend one political gathering each year as part of the reappointment process, he/she does so solely in furtherance of his/her own reappointment.³ Under the circumstances presented, the legislative clerk’s very limited appearance before the majority caucus, who will decide whether or not to renew his/her employment as clerk, appears to be roughly similar in nature to appearing before a political party’s screening committee as a judicial candidate (cf. Opinion 11-64) and is not encompassed within the prohibition on attending political gatherings (see 22 NYCRR 100.5[A][1][g]).

Note on terminology: The term "town council" as used in prior Opinions is synonymous with "town board."

_________________________________________

     ¹ The inquiring judge emphasizes that the clerk does not attend any other caucuses throughout the year but only the year-end caucus as necessary for reappointment to another one-year term as clerk.

     ² As described in Opinion 09-138, remittal is a three-step process: “First, the judge must fully disclose the basis for disqualification on the record . . . . Second, . . . without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding” (Opinion O9-138, relying on 22 NYCRR 100.3[F]).

     ³ It is significant, in the Committee’s view, that the position is appointive, rather than elective (see 22 NYCRR 100.0[A]; 100.5[B]; County Law § 411).