Opinion 17-32

March 16, 2017

Digest:         A town judge may permit his/her court clerks to certify that they will abide by the town ethics code, provided that doing so does not interfere or conflict with the Rules Governing Judicial Conduct.

Rules:          Town Law § 20(1)(a); 22 NYCRR part 50; 100.0(S); 100.1; 100.2(A); 100.2(C); 100.3(B); 100.3(C)(2); 100.6(A); Opinions 16-104; 16-55; 10-116.

Opinion:

         A town board has asked all town employees, including the town court clerks, to complete a form relating to the town ethics code. Recipients must “certify” that (1) they have “read, understood and agree to abide by” the town ethics code and (2) they and their relatives have no conflicts of interest as defined in the town ethics code.¹ An ethics board, appointed by the town board, will investigate alleged code violations, conduct hearings, and issue written decisions. The ethics code further provides that town employees “may be censured, suspended or removed from office or employment, in the manner provided by law,” if they violate the code.² A town justice who has reviewed Opinions 16-55 and 16-104 now asks if he/she must prohibit the court clerks from signing the form.

         A judge must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and preserve the judiciary’s independence (see 22 NYCRR 100.1; see also 22 NYCRR 100.0[S] [“An independent judiciary is one free of outside influences or control”]). A judge must not convey or permit others to convey the impression they are in a special position to influence the judge (see 22 NYCRR 100.2[C]); and must respect and comply with the law (see 22 NYCRR 100.2[A]) and be faithful to it (see 22 NYCRR 100.3[B]).

         Although the Rules Governing Judicial Conduct do not, by their terms, apply directly to nonjudicial court personnel such as town or village court clerks (see 22 NYCRR 100.6[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” (22 NYCRR 100.3[C][2]). In addition, Part 50 of the Rules of the Chief Judge sets forth the Rules Governing Conduct for Nonjudicial Court Employees (22 NYCRR pt 50). Although “the Office of Court Administration does not consider Part 50 to be applicable to nonjudicial employees of the town and village justice courts,” the Committee has advised that “town and village justices should encourage such employees to be guided by [Part 50] to ensure their own ethical conduct” (Opinion 10-116 fn 1).

         Turning now to the present inquiry, the Committee believes Opinion 16-104 is inapposite, as permitting town court clerks to certify they will comply with a town ethics code will not, without more, “create an appearance the [town] court is part of the executive branch serving under the [town board]’s direction and control” (Opinion 16-104).

         In Opinion 16-55, the Committee considered whether a town judge may agree to be bound by a town ethics code to the extent that its provisions are “more stringent” than the Rules Governing Judicial Conduct. As the Committee explained (id.), the Rules “have been promulgated pursuant to authority constitutionally vested in the very highest levels of the judiciary itself” and

necessarily reflect significant policy choices based on extensive institutional experience with the administration of justice and all aspects of court operations. As a result of these policy choices, the Rules may simultaneously be “more stringent” in certain areas, and “more lenient” in other areas, than lawyers or the general public might otherwise expect.

Thus, because the Rules reflect a balance of “significant policy choices” made pursuant to “authority constitutionally vested in the very highest levels of the judiciary,” the Committee concluded that the inquiring town judge must not voluntarily submit to the town ethics code, as doing so “would impinge on the independence of the judiciary” (id.). Moreover, because the state constitution “vests specific bodies with authority to discipline, remove, or impeach judges,” the Committee advised “that a town judge’s voluntary submission to the authority of the town board for discipline and/or removal would raise serious separation-of-powers concerns, and likewise infringe on the judiciary’s independence” (id.).

         Here, by contrast, the Committee believes that a town court clerk’s adherence to a town ethics code, even one providing for discipline or removal of the court clerk “in the manner provided by law,” does not necessarily raise the same institutional and constitutional concerns, provided the town ethics code does not interfere with the judge’s authority to direct and control court operations as provided by law or otherwise require conduct incompatible with the integrity and independence of the judiciary.

         Accordingly, a town judge may permit his/her court clerks to certify that they will abide by the town ethics code, provided that doing so does not interfere or conflict with the Rules Governing Judicial Conduct.

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         ¹ Beyond conflicts, the ethics code also covers topics such as confidential information, gifts, nepotism, political activity, and use of municipal resources.

         ² The Committee cannot comment on legal questions, including the interaction of the town ethics code with Town Law § 20(1)(a) (“The clerk of a court of the town shall be employed and discharged from employment only upon the advice and consent of the town justice or justices.”).