Opinion 12-53

April 26, 2012

Digest:         It is inconsistent with the Rules Governing Judicial Conduct for a town justice court clerk to also serve as deputy supervisor in the same town.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(C)(2); Opinions 11-25; 10-67; 10-42; 10-20; 07-196; 06-01; 03-22; 03-21; 96-64 (Vol. XIV); 90-37 (Vol. V); NY Const art VI, §28(b), (c); Judiciary Law §212(2)(b), (l); Town Law §§20(1)(a)-(b), 29(3), (7), (6), 42; 2000 Ops Atty Gen No. 1033.

Opinion:

         The judges of a town court ask whether they may permit their full-time court clerk to serve as the deputy supervisor of the town. The inquiring judges state that the deputy supervisor "holds no voting rights" for any town board meetings or resolutions but stands ready "to fill in and run meetings if the [s]upervisor is unable due to illness or any other reason." The inquiring judges have provided a copy of the job description for deputy supervisor, as well as a written opinion concerning the legal compatibility of the offices (see generally Town Law §42). The inquiring judges explain that they are nonetheless concerned that the court clerk's service in this role in the "[e]xecutive branch of town government" might be ethically impermissible.

         Based on the information provided, it appears that, when acting for the supervisor, the deputy supervisor has all of the powers and duties of the supervisor, except the power to vote on matters coming before the town board (see Town Law §42). On substituting for the supervisor, therefore, the deputy supervisor's powers and duties would include, by way of example, presiding at town board meetings (id.), disbursing salaries and other monies owed by the town (see Town Law §29[3], [7]), and "prosecut[ing], in the name of the town, for all penalties given by law to such town for its use and for all moneys or property due the town" (Town Law §29[8]).¹

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary's integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must also 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 (see 22 NYCRR 100.3[C][2]).

         The Committee has previously advised that a town court clerk or bailiff should not serve on the town board (see Opinions 10-42; 06-01), and a village court clerk should not serve on the village board of trustees (see Opinion 03-21) because the positions are ethically incompatible. Based on the information presented, it appears that a deputy supervisor "would, in the absence of the supervisor, preside at meetings of the town board, except [he/she] would have no right to vote. [His/her] service on the town board would likely be recurring and could last for an extended period" (2000 Ops Atty Gen No. 1033; see also Town Law §42). Although the court clerk would not be able to vote, the Committee believes that the public may reasonably perceive that the court clerk is in a position to influence the decisions of the town board while he/she is presiding over town board meetings (cf. Opinion 06-01). Accordingly, the Committee's prior opinions preclude a town court clerk from serving as deputy town supervisor because such service expressly contemplates that, in the town supervisor's absence, the deputy supervisor will preside during town board meetings and will be vested with all of the powers and may perform all of the duties of the supervisor (see Town Law §42; Opinions 10-42; 06-01; 03-21).

         This conclusion is further bolstered by considering even a few of the broad range of executive powers and duties that the court clerk would perform, should the court clerk be called upon to act as deputy supervisor. The Committee will address two of these powers here.

         First, if the court clerk were to have power over payment of court expenses and salary payments to the judges who are supervising him/her (see Town Law §29[3], [7]), this could readily compromise the appearance, if not the reality, of judicial independence in significant respects (see generally Opinions 06-01; 03-21). In Opinion 03-21, the Committee noted that:

...should the village board allow the same person to serve as village trustee and clerk of the village justice court, the village justice's ethical responsibilities would be compromised. ... A village justice court clerk who also serves as a village trustee would participate in establishing the court budget as well as the village justice's salary. It is this Committee's view that the public's confidence in the integrity and impartiality of the judiciary would be diminished if the court clerk, who is the justice's subordinate in the court, could at the same time exercise authority over the court's budget and the justice's salary.

The Committee has also previously advised that a judge's "capacity to fully meet" the ethical obligation to supervise an employee whose duties are directly related to the ongoing activity in the courtroom "is cast into doubt, as is the independence of the judiciary, where the person subject to the judge's direction and control is likewise a person who passes upon the judges' salaries as well as other expenditures that may be required by the judges in carrying out their judicial responsibilities" (Opinion 06-01; 22 NYCRR 100.3[C][2]). Here, although the court clerk would not act in a legislative capacity with responsibility for "establishing" the court budget and judicial salaries, the clerk would instead be empowered to act in an executive capacity, by making or withholding disbursements for judicial salaries or court expenses, thus casting doubt on the judges' capacity to fully meet their ethical obligation to supervise the court clerk, and diminishing the public's confidence in the integrity and impartiality of the judiciary (see Opinions 06-01; 03-21; 22 NYCRR 100.2[A]; 100.3[C][2]; cf. Opinion 03-22 [noting that a "town justice must supervise the court clerk"]).

         Second, while "not every ethical rule applicable to judges necessarily applies with the same force to staff members" (Opinion 10-67, quoting Opinion 96-64 (Vol. XIV), there is nonetheless a "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.). Thus, it is ethically impermissible for a town court clerk to be responsible for "prosecut[ing] ... for all penalties" due the town (Town Law §29[8]), thereby becoming responsible for enforcement proceedings that are likely to come before the court (see e.g. Opinions 11-25 [justice court should not employ as part-time clerk person who is principal clerk of patrol operations in county sheriff's office, as the Committee has recognized strong appearance of impropriety and/or partiality where extra-judicial office referred to is one which directly involves enforcement of local laws, and court in which the clerk is employed has jurisdiction in this area]; 10-67 [village justice should not permit court clerk to also work as park ranger in same village, where ranger duties could include testimony in prosecutions in village court]; 10-20 [town judge should not permit part-time assistant court clerk to serve as part-time constable in same town]).

         The Committee therefore concludes that the position of town court clerk and deputy town supervisor for the same town are ethically incompatible under the Rules Governing Judicial Conduct (see Opinions 10-42; 06-01; 03-21).²

         The inquiry does not indicate the current status of the court clerk's application for, or employment as, deputy supervisor of the municipality. The inquiring justices should, at a minimum, bring to the court clerk's and the town supervisor's attention this Committee's opinion about the ethical implications inherent in allowing the simultaneous holding of both offices. If the justices of the court encounter any legal or other impediment to implementing the advice in this Opinion, the Committee suggests that they consult with their supervising judge for further guidance.

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      ¹ The statutory provision that "any person" eligible to run for election to town office, including a town official or employee, may be appointed deputy supervisor, does not settle the question of judicial ethics presented here (cf. NY Const art VI, §28[b]-[c]; Judiciary Law §212[2][b], [l]). Moreover, even if a court clerk is not legally barred from the post, whether a town justice is constrained by the Rules Governing Judicial Conduct from permitting his/her court clerk to so serve is a separate issue (see Town Law §20[1][a]-[b] [town court clerk "shall be employed and discharged from employment only upon the advice and consent" of the justices]).

      ² Over 20 years ago, the Committee advised in a terse opinion that a part-time judge "may serve as bookkeeper for the town supervisor and as deputy supervisor, but should recuse [him/her]self in cases involving the town or the supervisor" (Opinion 90-37 [Vol. V]). The Committee did not explain its reasoning but merely recited the general standards for public employment in a municipal department or agency, without further analysis (see id.). Critically, it appears that the details of the specific job responsibilities of the deputy supervisor position were not before the Committee (see id.). Although the Committee has subsequently reaffirmed the conclusion that a town justice may serve as bookkeeper to the town supervisor (see Opinions 07-196; 03-22), it has not further considered the propriety of a town justice serving as deputy supervisor in the same town. In light of the conclusions we have reached with respect to the town court clerk in the present inquiry, we hereby modify Opinion 90-37 (Vol. V) to the extent it is inconsistent with these conclusions.