Opinion 14-173

December 11, 2014

Digest:         A village justice may not consent to hire a village court clerk who would concurrently be employed as an Admissions Officer in the County Sheriff’s office.

Rules:          22 NYCRR 100.1; 100.2(A); 100.3(C)(2); Opinions 11-25; 10-67; 01-43 (Vol. XX); 98-59 (Vol. XVII); 96-64 (Vol. XIV); Joint Opinions 09-210/09-228; 08-219/08-221.

Opinion:

         A village justice asks if he/she may consent to hire¹ as court clerk a person who would be concurrently employed as an Admissions Officer in the County Sheriff’s office. The justice advises that as an Admissions Officer the prospective hiree books detainees into the county jail, but has “no contact with [inmates] after the initial booking.” The job description attached to the inquiry notes the purpose of the position is to “[e]nsure all prisoners are admitted to the jail in accordance with the law, and in a manner designed to protect the safety of all persons and the security of the facility.” The Admissions Officer must, among other things: conduct pat-down searches of inmates; confiscate and carefully document inmates’ private property, including money; take inmates’ photographs and fingerprints and submit them to the Division of Criminal Justice Services; assess inmates for suicide risk; and, carry out initial classification of inmates if no Classification Officer is available. The Admissions Officer is also expected to respond to inquiries from “the public and other agencies concerning new admissions (charges, bail, court dates, etc.)” and “[l]og all inmates that leave the building for transport.” Finally, although this fact is not determinative, it appears that the formal title of the position is “Correction Officer,” with the “[w]orking [t]itle [of] Admissions Officer.”

         A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). In addition, a judge “shall 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” (22 NYCRR 100.3[C][2]).

         Although the Committee recognizes that limitations on the extrajudicial conduct of a judge do not automatically apply to court staff (see Opinion 98-59), the Committee nevertheless has recognized an 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” (Opinion 96-64 [Vol. XIV]).

         Thus, where a court clerk would also be employed in a position involving ongoing police/law enforcement activity, thereby acquiring knowledge of such activity in real time, the Committee has concluded the two positions are fundamentally incompatible (see Opinion 98-59 [Vol. XVII] [village court clerk and dispatcher for the village police department incompatible]; Opinion 01-43 [Vol. XX]; [village court clerk and clerk of village police department incompatible]; Opinion 11-25 [town court clerk and principal clerk of patrol operations with the County Sheriff’s office incompatible]). For similar reasons, the Committee has also advised that a town or village justice must not permit the court clerk to also work as a county probation officer who is “a peace officer ... authorized to perform law enforcement functions,” even though the probation department appears in the judge’s court only infrequently (see Joint Opinion 08-219/08-221 [noting that the individual under consideration is “responsible for case intake in Person In Need of Supervision, Juvenile Delinquency and Family Offense cases in the Family Court”).

         Here, the description of assigned duties for the position of Admissions Officer are far removed from strictly clerical duties and may be, at least in appearance, the equivalent of a Correction Officer who has peace officer status (see Joint Opinion 09-210/09-228 [town judge may not serve as a Magnetometer Screening Officer for a nearby city police department, “even if it does not confer actual police officer or peace officer status, because the duties to be performed are so closely related, or similar in nature, to law enforcement functions that a judge so employed could not avoid the appearance of impropriety”]; CPL§ 2.10(25) [peace officers include “correction officers of any state correctional facility or of any penal correctional institution”]). Critically, the Admissions Officer plays a prominent role at the time of booking, a process that involves personal interaction with each incoming inmate, including pat-downs, to ensure the facility’s safety and security (see Joint Opinion 09-210/09-228 [noting that a Magnetometer Screening Officer “may conduct a pat down search of a subject if necessary”]).

         The County Sheriff’s office is involved in the investigation and prosecution of offenses that may be prosecuted in the village court. As such, to permit a village court clerk who “essentially has unrestricted access to [Justice] Court files” (Opinion 10-67), to be involved in the ongoing law enforcement activity of the local County Sheriff as an Admissions Officer would diminish public confidence in the judiciary’s integrity and impartiality (see Opinion 01-43 [Vol. XX]). Therefore, a village judge may not consent to hire a village court clerk who would concurrently be employed as an Admissions Officer in the County Sheriff’s office.

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     ¹ A village mayor is responsible for appointing the clerk of the village court only upon the advice and consent of the village justice or justices (see Village Law 4-400).