Opinion 17-58

May 4, 2017

Digest:         A village court clerk may not accept appointment as associate village justice of the same court, even where he/she would act only in the absence of the other village justice.

Rules:          22 NYCRR 100.2; 100.2(A); 100.6(B)(4); Opinion 16-53; 12-175; 11-92; 08-172; 07-62/07-69; 03-22; 98-113; 1994 Ops Atty Gen No. 94-29; 1974 Opps Atty Gen 307.

Opinion:

         A village court clerk asks if he/she may be appointed as associate village justice, to “sit only in [the] absence” of the current sole village justice. The clerk would attend judge school “and follow all the rules,” but would only actually serve as a judge “in an emergency” when the current village judge is unavailable.

         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 part-time judge may nonetheless accept public employment in a federal, state or municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]).

         A part-time judge may serve as a court clerk in another jurisdiction (see Opinions 08-172; 07-62/07-69) and may even “act as his or her own clerk” in some circumstances (see Opinion 11-92; 1994 Ops Atty Gen No. 94-29).¹

         By contrast, a part-time judge in a two-judge court may not also serve as that court’s clerk because the positions are ethically incompatible (see Opinions 16-53; 03-22; 98-113; cf. Opinion 12-175 [part-time judge may not serve as a part-time court attorney to his/her co-judge]). For example, a part-time judge “might not be perceived as impartial if he or she is also a court clerk for another judge of the same court, handling cases that could potentially come before him or her” (Opinion 98-113). Moreover, the part-time judge “would be simultaneously his/her co-judge’s peer in his/her capacity as a judge; and his/her co-judge’s subordinate in his/her [nonjudicial] capacity” (Opinion 12-175). This remains true even if one judge would exclusively handle civil matters, and the other criminal (id.).

         Indeed, Opinion 16-53 is directly on point. In that inquiry, a judge wished to “permit the court clerk to serve as acting justice of the same court” (Opinion 16-53). Relying on prior opinions, the Committee advised the positions were ethically incompatible (id.). Here, too, addition of an associate village justice would make the court a two-judge court, even though the court clerk would only serve as a judge when the current village justice is unavailable. The court clerk would simultaneously be his/her co-judge’s peer and subordinate (see Opinion 12-175) and would presumably be required to perform duties as the court’s sole clerk that “must, by law, be separately supervised or approved by the judge” (Opinion 11-92). The proposed dual employment is therefore impermissible (see Opinions 16-53; 12-175; 03-22; 98-113).

         Accordingly, this village court clerk must either decline appointment as associate justice in the same village court or resign his/her position as court clerk if he/she accepts the appointment.

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         ¹ To the extent legally permitted, a part-time judge who is the sole judge of a court with two court clerks may perform certain duties normally assigned to a court clerk and be separately compensated for these duties (see Opinion 11-92; 1994 Ops Atty Gen No. 94-29; 1974 Ops Atty Gen 307). At a minimum, the co-court clerk must perform “any duties that must, by law, be separately supervised or approved by the judge” and “accept[] for filing all documents the judge is required by law to file with the Court Clerk” (Opinion 11-92, distinguishing Opinion 03-22).