Opinion 16-104

June 16, 2016

Please Note: This opinion has been modified, in part, by Opinion 21-26, which states that “a town justice may appear at monthly town board meetings on behalf of the town court if (a) the judge concludes it is in the best interest of the court to attend and (b) the judge is satisfied the agenda reflects the town court’s status as a co-equal branch of government, rather than a department subject to the town board’s direction and control.” However, the Committee also expressly reaffirmed that a “judge must not acquiesce in an attempt by town officials ‘to compel attendance’ by the judge or court personnel, ‘as if the court were part of the executive branch.’”  Id. 

Digest:        A village justice must prohibit the court clerk from attending the mayor’s regularly scheduled meetings with the village government’s department heads.

Rules:          Village Law § 4-400; 22 NYCRR 100.0(S); 100.1; 100.2(A); 100.2(C); 100.3(C)(2); Opinions 15-215; 12-53; 11-92; 11-25; 99-104; 1974 Ops Atty Gen (Inf) at pg. 307.

Opinion:

         The inquiring village justice asks whether he/she may permit the chief court clerk to “attend [the mayor’s] monthly meetings with the village government’s department heads.” The judge notes the mayor is attempting to “require[]” the court clerk to attend these meetings, even though the clerk “has no other village responsibilities” beyond his/her duties at the village court.¹

         A judge must uphold the judiciary’s integrity and, especially in this situation, its 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]).

         In Opinion 99-104, the Committee advised a village justice must not attend such “monthly meetings of the village government’s department heads which are presided over by the Mayor.” As the Committee explained (id.):

The judge’s attendance at the monthly meetings would, in effect, erroneously identify the judge as a member of the executive branch of the local government serving under the direction of the Mayor. Such a role would not only jeopardize the independence of the judiciary but would also give rise to an appearance of impropriety, contrary to the Rules.

Here, the Committee believes the chief court clerk’s attendance at such monthly meetings with the village department heads would similarly raise serious separation-of-powers concerns; it would create an appearance the village court is part of the executive branch serving under the mayor’s direction and control (see Opinion 99-104; see also generally 22 NYCRR 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control.”]; cf. Opinion 12-53 [“if the court clerk were to have power over payment of court expenses and salary payments to the judges who are supervising him/her” as deputy town supervisor, “this could readily compromise the appearance, if not the reality, of judicial independence in significant respects”]).² In other words, the mayor’s attempt to compel attendance by court personnel, as if the court were part of the executive branch, would undermine at least the appearance, if not the reality, of judicial independence. Absent a legal requirement to do so, the judge may not acquiesce in this infringement on judicial independence (see Opinion 99-104; 22 NYCRR 100.0[S]; 100.1; 100.2[A]; 100.3[C][2]). The judge must therefore prohibit the court clerk from attending the mayor’s regularly scheduled meetings with the village government’s department heads.

         This prohibition does not apply to occasional meetings that may occur, such as an annual budget meeting, where the judge determines the court’s interests need to be represented. Nor does it prohibit a justice court clerk from complying with applicable statutes (see e.g. Opinion 11-92 [noting that a court clerk’s duties may include “electronically filing monthly audit and control reports; and presenting monthly reports to the municipality’s chief fiscal officer”]) or the judge from providing status reports to the village government where legally required and/or ethically permitted (see e.g. Opinion 15-215 [a justice court “may, subject to all applicable statutory provisions concerning confidential information or sealed records, present a monthly status report to the town or village board at a public board meeting”]).

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             ¹ Apparently, the mayor appoints the village court clerk “upon the advice and consent of the village justice” (Village Law § 4-400).

             ² Although limitations on a judge’s extra-judicial conduct “do not automatically apply to court personnel” (Opinion 11-25), the conduct here is not strictly extra-judicial, as the mayor is attempting to mandate the chief court clerk’s participation as a representative of the village court. Notably, 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).