Opinion 13-28

March 14, 2013

Digest:         It is inconsistent with the Rules Governing Judicial Conduct for a town supervisor to also serve as a security officer for the town court.

Rules:          22 NYCRR 100.2; 100.2(A); Opinions 12-53; 10-42; 06-01; 03-21.

Opinion:

         The inquiring part-time town judges have asked whether they may permit the town supervisor to provide security for the town court. They note that this arrangement would result in the same individual serving simultaneously as a town court employee and as chair of the town board of the same town.

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

         The Committee has previously advised that a town court bailiff should not serve on the town board (see Opinion 06-01). In addition, the Committee has advised that a town court clerk should not serve on the town board (see Opinion 10-42) or serve as deputy town supervisor (see Opinion 12-53), and a village court clerk should not serve on the village board of trustees (see Opinion 03-21). In each instance, the Committee concluded that the positions are ethically incompatible.

         In Opinion 12-53, discussing and synthesizing these and other prior opinions, the Committee identified several potential conflicts when a town or village court employee serves on the executive body of the town or village: (1) a possible perception that the court employee is in a position to influence the decisions of the executive body; (2) if the position appears to provide a court employee with influence over payment of court expenses and salaries to the judges who are supervising the court employee, this could significantly compromise at least the appearance of judicial independence and may also undermine the judges’ “capacity to fully meet” their ethical obligation to supervise the employee;¹ and (3) a potentially “strong appearance of impropriety and/or partiality” if the extra-judicial office referred to is one which directly involves the enforcement of local laws, and the court in which the employee is employed has jurisdiction in this area (Opinion 12-53).

         For similar reasons, the Committee concludes that the position of town court security officer and town supervisor for the same town are ethically incompatible under the Rules Governing Judicial Conduct (see Opinion 06-01 [town court bailiff should not serve on the town board]; see also Opinions 12-53; 10-42; 03-21).

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     ¹ This is of particular concern where the court employee’s “duties are directly related to the ongoing activity in the courtroom” (Opinion 12-53).