Opinion 19-102

October 24, 2019

Digest:         A town justice may not consent to employment of the town supervisor's full-time confidential secretary as a part-time town court clerk.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(C)(2); Opinions 19-63; 17-73; 16-104; 12-53; 10-42; 07-196; 03-21; 98-59; 97-107.

Opinion:

         A town justice asks if the town supervisor’s full-time confidential secretary may also serve as the part-time town court clerk. We understand the judge and the town supervisor fully support the proposed hiring without any reservations.

         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 also require court personnel “subject to [his/her] direction and control to observe the standards of fidelity and diligence that apply to the judge” and refrain from manifesting bias or prejudice in performing their official duties (22 NYCRR 100.3[C][2]).

         The Rules Governing Judicial Conduct do not necessarily prohibit a town court clerk from holding a second job with the town. Thus, for instance, a town justice “may allow a full-time bookkeeper, office manager and receptionist for the town to also serve as town court clerk” (Opinion 07-196). Nonetheless, a town court clerk’s outside employment must not “impair the judge’s ability to fulfill the obligations of judicial office” (Opinion 97-107) or “erode public confidence in the integrity and impartiality of the judiciary” (Opinion 98-59 [internal quotation marks and citation omitted]). For example, the justice court clerk position is ethically incompatible with service as village trustee or town board member in the same municipality (see Opinions 10-42; 03-21). Likewise, we said a town court clerk must not serve as deputy supervisor in the same town (see Opinion 12-53). We noted the deputy supervisor “holds no voting rights” on the board, but “stands ready ‘to fill in and run meetings’” if the supervisor is unavailable (id.). On those facts, we concluded “the public may reasonably perceive that the court clerk is in a position to influence the decisions of the town board” despite his/her inability to vote (id.).

         Equally important here, the justice court is “a separate and independent branch of government” (Opinion 17-73), even though it is locally funded (see e.g. Opinions 19-63 [“even if other branches of town government imagine the justice court as a revenue center, the Rules Governing Judicial Conduct preclude the justices from acquiescing in that concept of the court”]; 16-104 [village justice “must prohibit the court clerk from attending the mayor’s regularly scheduled meetings with the village government’s department heads”]). Thus, a village justice may not acquiesce to the combination of village court and village executive-branch clerical offices (see Opinion 17-73). Among other concerns, we noted “the proposed arrangement ... could undermine the judge’s ability to speak confidentially with his/her court clerks” (id.).

        Here, we believe employment of the town supervisor’s full-time confidential secretary as the part-time town court clerk would likewise create, at the very least, an appearance of impropriety. After all, the town supervisor presides over town board meetings and participates in setting the judge’s salary and the court’s budget. Indeed, he/she may be the most publicly visible and prominent member of the town’s executive and legislative branches. The secretary’s presumed allegiance to his/her full-time employer, the town supervisor, would raise questions about judicial independence and could undermine public confidence in the confidentiality of court matters. Accordingly, the positions are ethically incompatible and the justice may not consent to the proposed employment.