Opinion 20-88

June 18, 2020

Digest:         Where a court officer’s job responsibilities include performing administrative and clerical duties for the court on days when the court is not in session, the judge may not permit a police officer to serve in this role.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(C)(2); Opinions 20-66; 13-131; 98-148; 96-133; 96-64.

Opinion:

         A local village justice asks if he/she may permit a village police officer to serve as court officer, where the court officer’s duties include performing both traditional court security functions and “clerical tasks for the court when the court is not in session.” The judge notes the police officer is paid by the village, reports to the chief of police, and performs all normal duties of a police officer.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge also must require court personnel subject to the judge’s direction or control to observe the standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C][2]).

         It is well-established that local police or other law enforcement officers generally may serve as security officers in the courtroom, subject to certain limitations and absent special factors creating an appearance of impropriety (see e.g. Opinions 13-131; 98-148; 96-133; 20-66 [discussing prior opinions]). For example, we advised that a town’s Police Chief may not serve as town court attendant, as he/she has “authority, supervision and control over all subordinate police officers, including those who are appearing in the [town] court” and “is likely to be regarded by the public as the official representative of the police department” (Opinion 96-133). On those facts, we concluded the dual employment “could readily lead to erroneous perception that there is some official, judicially sanctioned relationship between the court and the police department,” thus “undermin[ing] the independence of the judiciary” (id.).

         Conversely, we recognize many other court roles require a greater public perception of neutrality. For example, we said a town justice may not permit the town court clerk to work simultaneously as town constable (see Opinion 96-64). We noted this outside non-judicial employment “is one which directly involves the enforcement of local laws” and “the court in which the clerk is employed has jurisdiction in this area” (id.). Accordingly, dual employment as town court clerk and town constable “would cause the judges’ impartiality to be reasonably questioned” (id.). Nor may a town or village justice permit a local constable to serve as a court interpreter, as “the position of court interpreter requires both the reality and the appearance of neutrality in order to promote public confidence in the judiciary’s integrity and impartiality” (Opinion 13-131).

         Here, the court officer has clerical duties for the court, on occasions when the court is not in session, in addition to traditional security functions. In discharging those clerical duties, the court officer would likely have access to case records involving matters investigated or handled by the police department, perhaps even including his/her own cases. As noted, a judge must not permit a local police officer to provide clerical services to the court (see Opinion 96-64). Accordingly, on these facts, the judge may not consent to the proposed dual employment, as it could lead to the “erroneous perception that there is some official, judicially sanctioned relationship between the court and the police department” (Opinion 96-133).