Opinion 21-163

October 28, 2021

Digest:         A town justice may consent to hiring a part-time court clerk who would, if hired, continue their current employment as a senior account clerk, in a strictly clerical capacity, in the payroll department for the county sheriff’s office. However, the judge must instruct the court clerk to advise the judge if the clerk’s non-judicial employment duties change materially.

Rules:          Town Law § 20(1)(a); 22 NYCRR 100.2; 100.2(A); 100.3(C)(2); Opinions 16-142; 15-175; 13-43; 11-25; 10-154; 06-125; 04-118; 01-43; 98-59; 96-64.

Opinion:

         A town justice asks if they may consent to hiring a part-time court clerk who would, if hired, continue their current employment as senior account clerk, doing data entry in the payroll department for the county sheriff’s office. The prospective hire’s responsibilities with the sheriff’s office “only pertain[] to data entry for payroll and responding to questions about vacation and/or overtime. There are no other interactions with any of the other functions (patrol, corrections, etc.) of the sheriff’s office.”

         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]). Moreover, a judge must require court staff to “observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties” (22 NYCRR 100.3[C][2]).

         Applying these principles, we have advised that a court clerk of a town or village court should not also serve as secretary for a police academy that is “sponsored by the local village police department and supplies the new recruits who as officers will enforce traffic violations in the judge’s court,” where that role involves attending training exercises at the academy and participating in a role-playing capacity (see Opinion 04-118). Similarly, a judge may not permit a court clerk to be simultaneously employed as part-time assistant to the police chief of the same police department that regularly appears in the judge’s court (see Opinion 13-43); as receptionist/clerk for the local police department (see Opinions 10-154; 01-43); or as principal clerk of patrol operations for the county sheriff’s office (see Opinion 11-25). Nor may a justice consent to the appointment of a dispatcher for the village police department as a village court clerk (see Opinion 98-59); or permit the town court clerk to accept appointment as a town constable in the same town (see Opinion 96-64). In each instance, we concluded that the court clerk’s “involvement in on-going police activity” or “close working relationship with the Chief of Police” would “erode public confidence in the integrity and impartiality of the judiciary” (Opinion 13-43).

         However, town and village justices generally may allow court clerks to engage in outside employment that is compatible with the clerk’s service with the court (see Opinion 16-142). In some instances, we have focused on the “strictly clerical” nature of the proposed outside employment in concluding it was permissible.

         For example, in Opinion 06-125, we said a town justice may hire¹ as court clerk an individual who will also be employed as a clerk with the probation department. The clerk’s duties with the probation department were “strictly clerical” in that the clerk was logging in, recording and dispatching incoming telephone calls and incoming cases; reconciling probation department bank statements; balancing probation department books; disbursing restitution payments; and performing general clerical duties. We advised that duties of such a routine nature would not compromise the impartiality of the court.

         In Opinion 15-175, we also found it was permissible for a justice court clerk to have concurrent employment at a substance abuse counseling and referral facility where their duties would involve “allocating funds to various departments and reconciling accounts,” and the clerk would be completely segregated from patients and their records. We advised that under these circumstances, the court clerk’s concurrent employment cannot reasonably create an appearance of impropriety or call the inquiring judge’s impartiality into question.

         Thus, the question before us is whether we should expand the exception carved out in Opinion 15-175 and 06-125 to permit a court clerk to maintain strictly clerical employment with a law enforcement agency, when the clerk’s duties do not involve police training exercises, dispatch, or other interaction with law enforcement or correctional functions. It is also significant here that the court clerk would work exclusively behind-the-scenes in payroll, an administrative department, rather than as confidential secretary to the sheriff (cf. Opinion 13-43) or in a role that may involve interaction with the general public (cf. Opinions 10-154; 01-43).

         We conclude the proposed court clerk’s duties with the sheriff’s office are likewise routine and strictly clerical in nature, as it “only pertains to data entry for payroll and responding to questions about vacation and/or overtime” and “[t]here are no other interactions with any of the other functions (patrol, corrections, etc.) of the sheriff’s office.” Under these circumstances, the court clerk’s concurrent employment in a strictly clerical capacity in the payroll department of the sheriff’s office cannot reasonably create an appearance of impropriety or call the inquiring judge’s impartiality into question.

      Thus, this judge may consent to the hiring of a part-time court clerk who will maintain concurrent outside employment as senior account clerk in the payroll department of the local sheriff’s office, in a strictly clerical capacity. However, the judge must instruct the court clerk to advise the judge if the clerk’s non-judicial employment duties change materially.

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¹ While we cannot comment on legal questions, we understand that a town court clerk “shall be employed and discharged from employment only upon the advice and consent of the town justice or justices” (Town Law § 20[1][a]).