Opinion 20-124

September 10, 2020

Digest:         A village judge must not consent to intrusions by the village police or the executive branch on the court’s independence.

Rules:          Judiciary Law § 212(2)(l); 22 NYCRR 100.0(S); 100.1; 100.2(A); 100.3(B)(2); 100.3(C)(2); Opinions 20-88; 19-155; 19-124; 18-156; 17-73; 16-104; 14-114; 09-205; 93-67.

Opinion:

         A village judge asks several questions about interactions with the village police department and the village court clerk.

          A judge must uphold the judiciary’s integrity, impartiality, and independence (see 22 NYCRR 100.1; 100.2[A]; 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control.”]). A judge must “require order and decorum in proceedings before the judge” (22 NYCRR 100.3[B][2]) and must “require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge” (22 NYCRR 100.3[C][2]). As we have recognized, “[a] village court is a separate and independent branch of government[,] distinct from the mayor, clerk, board and other village executive branch and legislative branch offices” (Opinion 17-73).

1. Hiring Security Personnel for the Village Court

         The judge first asks if the village may hire a court officer without the judge’s consent or approval.

         While we cannot comment on whether the village has the legal power or authority to hire a court officer without the judge’s consent or approval (see Judiciary Law § 212[2][l]), we note the judge should not consent to an arrangement he/she believes is improper (see e.g. Opinion 20-88 [judge may not consent to the dual employment of a police officer as a court clerk]). In Opinion 19-155, we addressed a village justice’s concerns about whether a newly appointed provisional village police officer, designated to provide security in the judge’s courtroom, had proper legal authority and credentials to carry a pistol. There, we said if the judge concludes the police officer is not properly authorized, trained, and/or licensed to carry a firearm, he/she “may take any lawful measures to ensure order and decorum in his/her courtroom, including, but not limited to, objecting to the officer’s placement in his/her courtroom and consulting with court administrators on how to proceed” (id.).

         Here, if the judge believes the village’s appointment unduly interferes with the court’s operations, the judge may likewise consult with an appropriate administrative or supervising judge (see generally Opinions 19-155; 14-114; 09-205). Once the judge has done so, he/she has no further ethical obligation (see Opinion 14-114).

2. Allocation of Security Personnel to Various Budget Lines

         The judge asks if the village may employ two court officers, one under the police budget and one under the court budget, with the judge’s consent and approval for one officer but not the other.

         As noted above, we cannot address whether the judge’s consent is legally required. We also cannot address questions such as whether the village may allocate a court officer’s salary to a particular budget line or pay one court officer’s salary through the village police department without the judge’s approval, as these local finance issues are likewise primarily legal in nature (see Judiciary Law § 212[2][l]).

         If the judge questions whether certain budget allocations are properly designated as court costs, the judge may raise those concerns with the mayor, the village board, the village attorney, and/or an appropriate administrative or supervising judge, as the judge deems appropriate (see Opinions 14-114; 09-205).

3. Access to Court Offices and Judge’s Chambers

         The judge also asks if the police department may have unrestricted access to the court clerk’s offices and judge’s chambers. For context, the judge explains the village court is located within the police headquarters and the courtroom itself was formerly the police line-up room. Thus, when the judge attempted to limit access to the court office areas for public health reasons, one police officer “told [the judge] the building belonged to the [police department] and they could access any area of the building they wished.”

         A village justice must not consent to combining the court’s clerical offices with executive branch operations (see Opinion 17-73 [noting concerns about judicial independence, confidentiality, and security]). Similarly, a town justice must not allow a town board member to spend an entire day in the court clerk’s office because it could “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” (Opinion 19-124). Indeed, we have suggested it would be improper for a town’s security cameras to monitor the judge’s chambers, as the judge must be able to “deliberate privately, review confidential documents, and confer privately with court personnel in chambers without audio or video monitoring or interference by other branches of town government” (Opinion 18-156).

         We believe granting the village police department unrestricted access to the court clerk’s office or the judge’s chambers carries the same risks. Because unrestricted access by police personnel clearly infringes on judicial independence, the judge may not acquiesce to it (see generally Opinions 19-124; 17-73; 16-104; cf. Opinion 18-156).

4. Shared Internet Access

         The judge asks if the court may share internet access with the village police. Specifically, the village police department currently arranges for internet service in the building. Thus, the court’s internet service is shared with the police department, and the judge and other court personnel must ask the police for the access codes.

         We have said a town court may participate in a computer network system provided by the town, “provided the town judges are satisfied that the confidentiality of court matters will be safeguarded” (Opinion 93-67). Although there have been many advances in computer technology and network operations since 1993, the same principles apply. Thus, we conclude a village court may use an internet service provided by the village police department, assuming the judge is satisfied the confidentiality of court matters will be preserved.

         We do not pass on the legal ramifications, if any, of this arrangement (see Judiciary Law § 212[2][l]).

5. Termination of Court Officer or Court Clerk

         Finally, the judge asks if he/she may terminate the employment of a court officer or a court clerk who is serving at will (i.e. not a civil service employee).

         We cannot comment on whether a village justice has the legal authority to terminate an at-will village court employee (see Judiciary Law § 212[2][l]).

         If the judge believes a particular village court employee interferes with or impedes court operations, the judge should raise these concerns with appropriate executive branch officials and/or an administrative judge (see Opinion 14-114).