Opinion 19-128

December 12, 2019

Digest:         A village justice may consent to hiring a part-time court clerk whose spouse is a village trustee.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(C)(2); Opinions 19-102; 12-53; 10-42; 03-21; 01-108.

Opinion:

         A village justice asks if he/she may permit a village trustee’s spouse to serve as a part-time court clerk. The prospective court clerk’s spouse is an elected member of the village board which sets the court’s budget, including the salaries of the village justice and the court clerk.

          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” (22 NYCRR 100.3[C][2]).

         The position of justice court clerk is ethically incompatible with service as village trustee or town board member in the same municipality (see Opinions 03-21; 10-42; 19-102 [discussing prior opinions]). The public’s confidence in the judiciary’s integrity and impartiality would be diminished if the court clerk, who is the justice’s subordinate in the court, could at the same time exercise authority over the court’s budget and the justice’s salary (see Opinion 03-21). We likewise found the positions of town court clerk and deputy town supervisor incompatible, as “the public may reasonably perceive that the court clerk is in a position to influence the decisions of the town board while he/she is presiding over town board meetings,” despite his/her inability to vote (see Opinion 12-53).

         More recently, we considered the propriety of the town supervisor’s full-time confidential secretary serving as the part-time town court clerk (see Opinion 19-102). There, too, we concluded the positions were ethically incompatible. As we explained (id.):

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.

         Here, however, it is not the village court clerk who would serve in an incompatible position, but the court clerk’s spouse.

         Nothing in the inquiry suggests that a village trustee’s spouse has any involvement with the village board’s operations or decision-making process. We find no ethical barrier to the appointment of a village trustee’s spouse as court clerk, since that fact alone does not give rise to an appearance of impropriety under Part 100 (see e.g. Opinion 01-108 [spouse of a village police officer may serve as village court clerk, provided the court clerk is insulated from any case in which the officer is involved]).

         Thus, the inquiring village justice may consent to the employment of a court clerk whose spouse is a village trustee.