Opinion 19-153
December 12, 2019
Digest: (1) If a town justice believes the town board’s hiring procedure in hiring a court clerk was unlawful and/or creates an appearance of impropriety, he/she must withhold his/her consent to hiring the selected court clerk. (2) A town justice need not object to employing a court clerk who:
(a) is the town supervisor’s second-degree relative, but must insulate him/her from all cases in which the town supervisor is personally involved or in which the town is a named party;
(b) will continue to work for a criminal defense attorney for one month while being trained by the outgoing court clerk, but must insulate him/her from matters involving that attorney during this period; and/or
(c) during the interview, expressed interest in assisting the town clerk if hired as town court clerk.
Rules: Town Law § 20(1)(a); 22 NYCRR 100.2; 100.2(A); 100.3(B)(1); Opinions 19-128; 18-12; 17-65; 16-23; 15-216; 14-114; 13-03; 09-205.
Opinion:
A town justice is concerned about the town board’s choice of a new court clerk. First, the town board eliminated some applicants in executive session without permitting the judge to review the applications and insisted on conducting the interview at a time when the judge would only be able to participate by telephone. The judge believes this procedure deprived him/her of a chance for meaningful input, even though Town Law § 20(1)(a) states “[t]he clerk of the court of a town shall be employed and discharged from employment only upon the advice and consent of the town justice or justices.” Second, the judge is uncomfortable with the selected applicant, who is the town supervisor’s second-degree relative and currently works for a local lawyer. If hired, the incoming court clerk would hold both positions for approximately one month, while being trained by the outgoing court clerk, but would end the outside employment on the outgoing court clerk’s last day. Finally, judge is also concerned that, during his/her interview, the applicant expressed interest in “assisting the Town clerk” if hired as a town 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 also must “respect and comply with the law” (22 NYCRR 100.2[A]) and “be faithful to [it]” (22 NYCRR 100.3[B][1]).
1. What are a town justice’s ethical obligations when he/she believes he/she “was not afforded a fair opportunity to advise and consent to the hiring of this court clerk position as provided by section 20 of the Town Law”?
We cannot comment on the propriety of the town board’s procedures. However, if the judge believes the procedure was unlawful and/or creates an appearance of impropriety, he/she must withhold his/her consent to hiring of the selected court clerk (see 22 NYCRR 100.2[A] [judge must “respect and comply with the law”]; 100.3[B][1] [judge must “be faithful to the law”]). In addition, whether or not the judge believes the conduct was unlawful, the judge may also, in his/her sole discretion, take any other lawful steps to express his/her objections, including (but not limited to) raising his/her concerns with court administrators or town officials (see e.g. Opinions 09-205; 14-114).
2. May a town justice consent to the hiring of a court clerk who (a) is the town supervisor’s second-degree relative, (b) will continue to work for a criminal defense attorney for one month while being trained by the outgoing court clerk, and (c) during the interview process, “indicated [an] interest in assisting the Town clerk” if hired as town court clerk?
The judge need not object to hiring a court clerk based solely on these factors (see Opinions 19-128 [a village justice may consent to the appointment of a court clerk whose spouse is a village trustee]; 15-216 [town or village justice may permit a part-time court clerk to accept part-time clerical employment with a law firm which will no longer appear in the judge’s court after hiring the court clerk]; 13-03 [town justice may permit the town court clerk to serve simultaneously as the town clerk]). Accordingly, the judge may ethically consent to the appointment, provided he/she is satisfied with the selection (cf. Opinion 16-23 [judge need not appoint an expert whose competence he/she questions]).
However, if the newly hired court clerk’s private employer appears in the judge’s court during the one-month “overlap” in employment, the judge must insulate him/her from the matter and disclose the insulation (see Opinion 15-216). Moreover, in light of the clerk’s familial relationship with the town supervisor, the judge must also insulate the court clerk from all cases in which the town supervisor is personally involved (e.g. as a party or a witness) or in which the town is a named party (see Opinion 18-12).1
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1 We assume these insulation requirements will not unduly hinder court operations. If this assumption is incorrect, we suggest the judge seek further guidance before consenting to the proposed eployment (see Opinion 17-65 [where ethically mandated insulation would prevent the court clerk from performing his/her duties if hired, the judge may not consent to the proposed employment]).