Opinion 13-131

September 12, 2013

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 town or village justice may permit a local constable to serve as a part-time court security officer, but not as a court interpreter.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(C)(2); 100.3(E)(1); 100.3(F); Opinions 09-138; 98-148 (Vol. XVII); 98-59 (Vol. XVII); 96-133 (Vol. XV); 96-64 (Vol. XIV).

Opinion:

         A judge of a town or village justice court asks if he/she may permit a municipality’s constable to serve as a part-time court security officer or court interpreter. The judge notes that one constable serves process for certain cases that are heard in the judge’s court, has done so for years, and that such service has only very rarely been challenged.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always promote public confidence in the judiciary's integrity and impartiality (see 22 NYCRR 100.2[A]), and must 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]). Also, a judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). Therefore, a judge must disqualify him/herself in a proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), subject to remittal where permitted (see 22 NYCRR 100.3[F]).

Court Security Officer

         The Committee has previously advised that it is not ethically improper for a town or village court to use court security services provided by local, county or State law enforcement agencies or peace officers (see Opinion 98-148 [Vol. XVII]), except where particular circumstances “might lead to the erroneous perception that there is some officially sanctioned relationship between the local police department and the court” (id., citing Opinion 96-133 [Vol. XV] [local Chief of Police should not serve as Town Court Attendant]).

         Moreover, the Committee has recognized that:

local police officers and peace officers have traditionally provided court security services in the various courts in which state-employed Unified Court System Uniformed Court Officers do not serve. Indeed, the Judiciary Law requires that the sheriff of each county outside of New York City "must, within a reasonable time before the sitting, in his county, of any term of court, notify, in writing or personally, as many constables or deputy sheriffs of his county, as he deems necessary, to appear and attend upon the term during its sitting." Judiciary Law § 403.

(Opinion 98-148 [Vol. XVII]). Here, too, in the Committee’s view, the inquiring judge need not prohibit an individual who is employed as a town or village constable from also serving part-time as a justice court security officer (see Opinion 98-148 [Vol. XVII]).

         To avoid even the appearance of impropriety, however, the judge should not permit the constable to serve process in the courtroom or while the constable is on duty as a justice court security officer. Such conduct, if knowingly permitted by the judge, could lead to the “erroneous perception that there is some official, judicially sanctioned relationship between the court and the police department” (see Opinion 96-133 [Vol. XV]).

         If the constable is called as a witness before the inquiring judge (or any other judge for whom the constable serves as a part-time court security officer), the judge must disqualify him/herself from the matter, subject to remittal as long as no party is appearing without counsel (see 22 NYCRR 100.3[E][1]).¹

         The Committee notes that if all judges of the court are disqualified from a matter, they should notify the appropriate administrative or supervising judge to ensure that the matter is handled appropriately.

Court Interpreter

         The question of whether a town or village justice may permit the local constable to serve as a court interpreter appears to be a matter of first impression.

         It appears that the role of a court interpreter is very different from that of a court security officer. The Unified Court System’s Department of Court Interpreting Services sets forth the following expectations for court interpreters:

Interpreters must provide an accurate, impartial interpretation of court proceedings. To insure that interpreters meet these responsibilities, the court system has set up a number of testing and screening measures and requires all interpreters to take an official swearing to "discharge the duties of the position of court interpreter to the best of my ability."

Court Interpreters are required to observe a code of professional conduct. They are expected to provide interpreting services in an impartial, accurate and proficient manner.

(http://www.nycourts.gov/COURTINTERPRETER/faqs.shtml).

         In light of these responsibilities, it is clear that the position of court interpreter requires both the reality and the appearance of neutrality in order to promote public confidence in the judiciary’s integrity and impartiality (see generally 22 NYCRR 100.2[A]).

         The Committee has previously advised that town court judges should not permit their full-time court clerk to accept appointment as a constable in the same town (see Opinion 96-64 [Vol. XIV]), and that a village justice should not consent to the appointment of a dispatcher in the village police department to serve concurrently as a village court clerk (see Opinion 98-59 [Vol. XVII]). The Committee has explained that where the court clerk’s outside employment “is one which directly involves the enforcement of local laws,” and “the court in which the clerk is employed has jurisdiction in this area,” such dual employment “would cause the judges’ impartiality to be reasonably questioned” (Opinion 96-64 [Vol. XIV]).

         For similar reasons, the inquiring judge also must not permit a local constable to serve as a court interpreter (see Opinions 98-59 [Vol. XVII]; 96-64 [Vol. XIV]). Moreover, it would surely erode confidence in the judiciary’s impartiality if a member of law enforcement were to provide official court interpreting services in criminal matters.

___________________________

     ¹ Remittal involves three steps: “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 09-138, relying on 22 NYCRR 100.3[F])).