Opinion 17-65

May 4, 2017

Digest:         A village court clerk who is the village police chief’s third-degree relative must be insulated from all cases involving the village police. Where such insulation would prevent the court clerk from performing his/her duties if hired, the village justice may not consent to the proposed employment.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 16-160; 15-224; 14-147; 13-138; 07-50; 07-40; 06-163; 01-108; 03-133.

Opinion:

         A village justice asks whether he/she may permit the local police chief’s third-degree relative¹ to serve as a full-time village court clerk. In particular, the judge asks if he/she would need to “shield” the police chief’s relative “from police matters (of which there are many), with appropriate disclosures.”

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]). Therefore, a judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in a proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other specific circumstances required by rule or law (see generally id.; Judiciary Law §14).

Where a court clerk’s first-degree relative is a law enforcement officer without supervisory responsibilities, the Committee has advised that the court clerk must be insulated from all matters involving his/her relative (see Opinions 07-50 [first-degree relative]; 07-40 [first-degree relative]; 06-163 [spouse]; 01-108 [spouse]). The Committee finds that the same standard should apply to a court clerk’s third-degree relatives as well.

Here, of course, the law enforcement officer is a police chief. In general, when a judge must disqualify him/herself in matters involving a police chief, the disqualification extends to all matters involving the police department (see Opinions 16-160; 15-224; 03-133).

Applying these principles here, we conclude that the police chief’s third-degree relative, as village court clerk, would likewise have to be insulated from all matters involving the village police.

Finally, the Committee has advised that a judge should not appoint as his/her personal law clerk an individual whose police officer spouse supervises an investigative unit that is involved in half of the criminal cases on the court’s calendar (see Opinion 13-138). Here, too, as the majority of the village court’s docket consists of criminal prosecutions and tickets that involve the local police department, insulating the village court clerk from all cases involving the village police would apparently render him/her incapable of performing his/her duties if hired. As this would substantially disrupt court operations, the village justice should not agree to hire the police chief’s third-degree relative as a full-time court clerk.

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         ¹ When analyzing disqualification requirements, the Committee does not distinguish between relatives by blood or by marriage (e.g. Opinion 14-147 n 1). Thus, third-degree relatives of the judge and his/her spouse include nieces, nephews, aunts, uncles, great-grandparents or great-grandchildren, and their respective spouses.