Opinion 15-175

October 22, 2015

Digest:         A judge may permit the justice court’s sole court clerk to maintain concurrent clerical employment at a substance abuse facility that may assess and/or treat people who appear before him/her, where the clerk’s duties at the facility are strictly clerical and the court clerk is insulated from patients and their records.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(C)(2); Opinions 15-159; 13-01; 11-25; 10-165; 10-116; 09-184; 08-219/08-221; 06-125; 04-118.

Opinion:

         A town or village justice asks if he/she may permit the sole court clerk to have outside employment at a substance abuse counseling and referral facility that may assess and/or treat people who appear before the justice court.¹ The clerk would serve as administrative assistant to the facility’s finance director, whose duties are “of a purely financial nature and primarily involve allocating funds to various departments and reconciling accounts.” The judge also says the clerk “would not have access to patient files or records,” and would be totally segregated from patients.

         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]). A judge 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]).

         Although limitations on a judge’s extrajudicial conduct “do not automatically apply to court employees, particularly a [town or village] court clerk who is not the judge’s personal appointee” (Opinion 10-116 [citations omitted]), town and village justices “must ensure that the court staff refrains from engaging in any activities that could impair public confidence in the integrity and impartiality of the judiciary” (Opinion 09-184).

         The Committee has advised that a town or village justice may hire a court clerk who is also employed as a clerk for the county probation department (see Opinion 06-125) and may permit the secretary to the town’s planning board to serve as town court clerk (see Opinion 10-165). In each instance, the Committee concluded the court clerk’s outside employment, in a strictly clerical capacity, would not implicate the judiciary’s impartiality (see e.g. Opinion 13-01; compare Opinion 06-125 [court clerk may serve as probation department clerk] with Opinion 08-219/08-221 [court clerk may not serve as probation officer]).² Here, the court clerk’s proposed duties at the facility are likewise routine and strictly clerical in nature, as they involve “allocating funds to various departments and reconciling accounts,” and he/she will be completely segregated from patients and their records. Under these circumstances, the court clerk’s concurrent employment cannot reasonably create an appearance of impropriety or call the inquiring judge’s impartiality into question.

         Thus, this judge may permit the clerk to maintain concurrent outside employment in the capacity described. Of course, the court clerk “is responsible for ensuring that he/she is in compliance with any applicable administrative or legal requirements” necessary to the proposed employment (Opinion 09-184).

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         ¹ This facility “is one of many” in the area that “screen, assess, and treat people for substance abuse issues, including those who may have been ordered by a Court

           ² There may be additional limitations in some circumstances, such as when the outside employment, although clerical, unduly involves the court clerk in law enforcement or prosecutorial functions (see e.g. Opinions 11-25; 04-118) or involves a private law firm employer that appears in the judge’s court (see e.g. Opinion 15-159).