Opinion 12-89

June 14, 2012

Digest:         While it is not inherently unethical for a town justice to use a bonded armored car service to transport court funds to a bank for deposit, the judge must comply with applicable laws and regulations.

Rules:          State Finance Law §99-a(1), (3); Town Law §27(1); Village Law §4-410(1)(b); Uniform Justice Court Act §2021(1); 22 NYCRR 100.2(A); 100.3(C)(1); 101.1; 214.9(a); Opinions 12-43; 10-93; 09-116; 04-135; 1983 Ops St Comp No. 83-174; 1979 Ops St Comp No. 79-285.

Opinion:

         A town justice states that his/her town is contracting with an armored car service to transport money collected by town departments to the bank for deposit. The judge advises that the armored car personnel will be armed and bonded. The judge further advises that currently, the town court clerks transport the money collected by the court to the bank for deposit. According to the judge, the amount of money transported is significant. The judge asks whether it is ethically permissible for him/her to use the armored car service to transport court funds to the bank. In the judge's view, it would be safer to use the armored car service. Also, the judge indicates that he/she can do so and still comply with the Chief Administrative Judge's Rules that govern the deposit of court funds.

         A judge must respect and comply with the law (see 22 NYCRR 100.2[A]) and must diligently discharge his/her administrative responsibilities (see 22 NYCRR 100.3[C][1]). In particular, a town or village justice must deposit all money received in his/her judicial capacity in a separate bank account no later than 72 hours from the day of receipt, exclusive of Sundays and holidays (see 22 NYCRR 214.9[a]). In addition, within the first ten days of the month after such money is collected, the town or village justice must pay it to the New York State Comptroller or, if so directed, to the municipality where he/she presides (see State Finance Law §99-a[1],[3]; Town Law §27[1]; Village Law §4-410[1][b]; Uniform Justice Court Act §2021[1]).

         The New York State Comptroller has advised that a town justice is personally responsible for money the justice court receives (see 1979 Ops St Comp No. 79-285 [village justice is personally liable to pay fine money apparently stolen overnight from a file drawer in his/her office]) and, therefore, must have direct supervision and control over the receipt and handling of such money (see 1983 Ops St Comp No. 83-174).

         Consequently, the 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 and that a town justice should not permit a town employee who is not subject to the town justice's supervision to transport court funds to the bank for deposit (see Opinions 12-43; 10-93; 09-116; 04-135).

         Although the Committee believes that using an armored car service to transport court funds to a bank for deposit is a safer practice, and not inherently unethical, based on the statutes, rules and opinions cited, it is unclear to the Committee whether a town justice is legally permitted to do so. As the Committee cannot resolve a legal question (see 22 NYCRR 101.1), the Committee recommends that the inquiring judge contact the City, Town and Village Courts Resource Center for legal advice.

         In addition, the Committee calls upon the Office of Court Administration and the New York State Comptroller to clarify or seek the necessary changes in the governing statutes and rules to allow town and village justices to use an armored car service to transport court funds to a bank for deposit.