Opinion 13-03

January 24, 2013

Digest:         A town justice may permit the court clerk to serve simultaneously as the town clerk for the same town in which the court is located.

Rules:          Town Law §§ 20(1)(a),(b) ; 20(5); 25; 30(1); 60(1); 63; 22 NYCRR 100.2; 100.2(A); 100.3(C)(2); Opinions 12-53; 12-30; 11-92; 11-25; 03-21; 96-64 (Vol. XIV); 1989 Ops Atty Gen (Inf) No. 89-13; 1974 Ops Atty Gen (Inf) at pg. 307.

Opinion:

         A town justice asks if his/her court clerk may also serve as the town clerk for the same town in which the court is located.

         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]). The judge must also 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 the inquiring town justice does not list the duties of his/her court clerk, the Committee understands that such duties typically include inputting and filing traffic tickets; inputting criminal and civil cases; scheduling hearing dates and trials; answering court phones to provide general information and instructions to the public about court procedures; accepting monies for fines and fees and writing receipts therefor; reporting criminal dispositions; electronically filing monthly audit and control reports; and presenting monthly reports to the municipality’s chief fiscal officer (see Opinion 11-92). The clerk of the town court is not an “officer” of the town (see Town Law § 20[5]), but instead is an employee who “shall be employed and discharged from employment only upon the advice and consent of the town justice or justices” (Town Law § 20[1][a],[b]). Indeed, the Attorney General has opined that a justice court clerk “has no independent function whatever and is merely the alter ego of the justice to perform delegable routine but non-judicial duties” (1974 Ops Atty Gen [Inf] at pg. 307 [noting that a town court clerk’s purpose is “to provide clerical assistance” to the judge]).

          The Committee has previously advised that a justice court clerk may not simultaneously serve in a role where he/she will “have power over payment of court expenses and salary payments to the judges who are supervising him/her” (Opinion 12-53; see also, e.g., Opinion 03-21), or where the outside employment “‘directly involves the enforcement of local laws and ... the court in which the clerk is employed has jurisdiction in this area’” (Opinion 12-53, quoting Opinion 96-64 (Vol. XIV); see also, e.g., Opinion 11-25).

         The position of town clerk does not fall into either of these categories. The town clerk is an “officer” of the town, as is the inquiring town justice (see Town Law § 20[5]). Section 30[1] of the Town Law states that the town clerk “[s]hall have the custody of all the records, books and papers of the town” and:

shall attend all meetings of the town board, act as clerk thereof, and keep a complete and accurate record of the proceedings of each meeting, and of all propositions adopted pursuant to this chapter... . In addition, [he/she] shall act as secretary of the board of commissioners of any improvement district [and] shall keep a complete and accurate record in [his/her] office as town clerk of all proceedings... . The town clerk shall record all deeds of conveyances in the office of the clerk of the county in which the property is located and thereafter file the same in the town clerk’s office.

         Although the town clerk must attend meetings of the town board and act as its clerk, the town clerk is not a member of the board (or the deputy of any member), and does not preside at the board’s meetings or join in its deliberations (see Town Law §§ 60[1], 63; Opinion 12-53; cf. Opinion 12-30 [noting that the role of clerk to the county legislature “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”]). Critically, the town clerk has no role in setting the justice’s salary or determining the budget for the town court, and has no enforcement or prosecutorial functions (see Opinion 12-53).

         Moreover, the Committee concurs with the Office of the Attorney General’s assessment that the town clerk’s duties “have no bearing upon the operation of the town court” (1989 Ops Atty Gen [Inf] No. 89-13 [emphasis added] [advising that the offices of town clerk and clerk of the town court are legally compatible]).

         And even in the instances where there is interaction between the town court and the office of the town clerk (see, e.g., Town Law § 25 [requiring that town officers, including town justices, file their oath of office and any required undertaking with the town clerk]), the Committee believes that the town clerk’s duties are ones that a court clerk can perform without compromising the court’s real or apparent impartiality.