Opinion 19-124

October 24, 2019

Digest:         (1) On these facts, a town justice must prohibit a town board member from spending the entire day in the court clerks’ office to monitor their work. (2) A town justice must attend the town’s sexual harassment prevention training program if legally required to do so.

Rules:          Labor Law § 201-g; 22 NYCRR 100.0(S); 100.1; 100.2; 100.2(A)-(C); Opinions 19-80; 19-63; 18-156; 18-57/17-166; 17-73; 16-55; 99-104.

Opinion:

         A town justice asks about two town initiatives. First, the judge asks if he/she may allow a town board member to be present in the court clerks’ office for an entire day “to observe [them] working, to understand what their duties are.” The judge says these duties involve “many tasks which are confidential in nature and would not be open to the public.” The judge believes the request fits a pattern of town board “interference” in hiring and training new court clerks and determining “the hours when the Court Office is open to the public.”¹ There is, however, a security camera (without audio) in the clerks’ office, and several town officials “can and do review the live video feed and observe the Court Clerks working behind the counter” (cf. Opinion 18-156). Second, the judge asks if he/she must attend the town’s sexual harassment prevention training. The town supervisor claims the judge is “required to attend,” but the judge is concerned he/she might compromise judicial independence by inappropriately “submit[ting] to their authority.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must uphold the judiciary’s independence (see 22 NYCRR 100.1; 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control.”]). Thus, for example, a judge must not allow “political or other relationships to influence the judge’s judicial conduct or judgment” (22 NYCRR 100.2[B]) nor permit anyone to “convey the impression that they are in a special position to influence the judge” (22 NYCRR 100.2[C]). A judge also must “respect and comply with the law” (22 NYCRR 100.2[A]).

In-Person Observation of the Court Clerks’ Back-Office Work

         The justice courts are “a separate and independent branch” of local government (Opinion 17-73), constitutionally vested with certain powers and responsibilities (see generally Opinion 16-55). Thus, we said a village justice’s attendance at the mayor’s monthly “department heads’ meetings” would “erroneously identify the judge as a member of the executive branch of the local government serving under the direction of the Mayor” (Opinion 99-104). That role would jeopardize judicial independence and create an appearance of impropriety (see id.). A village justice also may not consent to merging the court’s clerical offices with those of the village’s executive branch (see Opinion 17-73).

         Similarly, we concluded a town justice’s attendance at a private meeting with the town comptroller and town board members, for the express purpose of explaining and justifying an apparent decrease in revenue, would undermine public confidence in the court’s integrity, impartiality and independence (see Opinion 19-63). We noted “it would likely create a public impression that the justice court is a town ‘department’ that must either meet certain revenue goals or account for its failure to do so” (id.). We further cautioned it could “create an impression that the town comptroller and/or town board are in a position to influence the judge’s judicial conduct or judgment in vehicle and traffic matters or other cases where fees or fines may legally be imposed” (id.).

         Here, too, a town board member’s presence in the court clerks’ office for an entire day, particularly while they work on back-office tasks, could undermine public confidence in the court’s impartiality and independence and create a public impression that the justice court is a “department” of the town. It could also create an impression that the town board is in a position to influence the judge’s judicial conduct or judgment, compromise confidential communications between the judge and his/her court clerks, and otherwise interfere unduly with court operations. On these facts, we conclude the town justice must not allow a town board member to spend the entire day in the court clerks’ office to monitor their work, even for the stated purpose of “gain[ing] an understanding of what their duties are.”

         However, the town justice may allow the town board member to be present in public areas during the court’s regular business hours, including any public portions of the court clerks’ office, and to view security camera footage (cf. Opinion 18-156), subject to all applicable statutory provisions concerning confidential information or sealed records.

Mandatory Sexual Harassment Prevention Training

         The town justice also asks if he/she “must” attend the town’s mandatory sexual harassment prevention training. We previously said a village justice may attend a village’s mandatory sexual harassment and workplace violence training, where the program is educational and preventive in nature, provided that doing so does not interfere or conflict with the Rules Governing Judicial Conduct (see Opinion 19-80). While we cannot comment on this town’s specific training program, state law affirmatively requires employers to provide sexual harassment prevention training (see Labor Law 201-g). We believe a town justice does not compromise judicial independence or its appearance by taking state-mandated sexual harassment prevention training, even when it is organized or sponsored by another branch of town government.

         We conclude the judge must attend the sexual harassment prevention training program if legally required to do so. As usual, we take no position on this legal question; if unsettled, the judge may seek administrative guidance (cf. Opinion 18-57/17-166 [“a judge does not violate [Part 100] by fulfilling his/her statutory powers, functions, and duties as a licensing officer in good-faith reliance on statutory authority and administrative guidance on how to exercise that authority”]).

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¹ We understand the judges have “temporarily reduced” the court clerks’ “public office hours” to handle a seasonal increase in back-office work and for training purposes. The town board disagrees with this decision and apparently wishes to increase the court’s public office hours by reducing the percentage of time the court clerks spend on back-office tasks.