Opinion 21-26

March 11, 2021

Digest:         (1) Where a town justice and town court clerk hold ethically permissible second positions within the town government, they may attend and participate in monthly town board meetings in their non-judicial/non-court capacities and be listed on the agenda in those capacities.

(2) A town justice may appear at monthly town board meetings on behalf of the town court if (a) the judge concludes it is in the best interest of the court to attend and (b) the judge is satisfied the agenda reflects the town court’s status as a co-equal branch of government, rather than a department subject to the town board’s direction and control.

(3) A town justice may provide a monthly cashbook and statute summary report to the town board.

Rules:          22 NYCRR 100.0(S); 100.1; 100.2; 100.2(A)-(C); 100.3(B)(1); 100.3(B)(7); 100.3(B)(9)(a); Opinions 19-63; 19-07; 16-104; 15-215; 13-03; 11-92; 99-104; 89-129.

Opinion:

         The inquiring town justice is also employed by the town in a second, non-judicial capacity. Moreover, the town court clerk is also employed as the town clerk. The judge asks if they may attend monthly town board meetings in their respective non-judicial/non-court capacities and/or as representatives of the town court. The judge also asks if it is permissible to submit monthly cashbook and statute summary reports to the town board on behalf of the court. As relevant to this inquiry, we understand the town board includes the town supervisor, who also serves as chief of the town government’s executive branch. Ordinarily, the agenda for the town board meetings lists the “Town Officers” who will appear and report to the town board, such as the highway superintendent, assessor, code enforcement officer/dog control officer, town clerk, town historian and cemetery curator. These town executive branch employees are presumably subject to the town board’s direction and control in a way that the town justice and town court are not.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and to preserve the judiciary’s independence (see 22 NYCRR 100.1; see also 22 NYCRR 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control”]). A judge must “dispose of all judicial matters promptly, efficiently and fairly” (22 NYCRR 100.3[B][7]), must not be “swayed by partisan interests, public clamor or fear of criticism” (22 NYCRR 100.3[B][1]), and must not “make pledges or promises of conduct in office that are inconsistent with the impartial performance of the adjudicative duties of the office” (22 NYCRR 100.3[B][9][a]). A judge must not allow political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must not convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). A judge must also respect and comply with the law (see 22 NYCRR 100.2[A]) and be faithful to it (see 22 NYCRR 100.3[B][1]).

         We outlined many applicable principles in Opinion 19-63 (indentation and most citations omitted):

As we have observed, the “state constitution establishes the state’s three branches of government and vests specific bodies with authority to discipline, remove, or impeach judges.” In light of this constitutional scheme, we advised “a town judge’s voluntary submission to the authority of the town board for discipline and/or removal would raise serious separation-of-powers concerns, and likewise infringe on the judiciary’s independence.” In Opinion 99-104, we likewise advised that a village justice must not attend “monthly meetings of the village government’s department heads which are presided over by the Mayor.” As we explained[, the] judge’s attendance at the monthly meetings would, in effect, erroneously identify the judge as a member of the executive branch of the local government serving under the direction of the Mayor. Such a role would not only jeopardize the independence of the judiciary but would also give rise to an appearance of impropriety, contrary to the Rules.

...

We emphasize, however, that judges may meet with town employees and officials in the normal course of their duties, including in the budgeting process (see e.g. Opinions 89-129 [town justice may appear before the town board to request additional funds to carry out court functions]; 16-104 [prohibition on a village justice or court clerk attending the mayor’s monthly meetings with village “department heads” does not prevent them from attending “an annual budget meeting” or other such occasional meetings “where the judge determines the court’s interests need to be represented”]). ...

[T]he present opinion does not preclude the judge from communicating with town officials concerning the amount of fines and fees collected and/or the court’s budgetary needs, as permitted by statutes and prior opinions. Further, we believe the judge may publicly discuss the court’s operations, including a decrease or increase in revenue, at a town board meeting or public forum, provided he/she (1) is careful not to cast doubt on his/her integrity, impartiality, and independence in adjudicating matters that could result in revenue for the town and (2) avoids impermissible comment on “any identifiable pending or impending case before the judge.”

         The new wrinkle presented here is that the town justice and town court clerk both maintain outside employment with the town. We believe that, where a town justice and/or town court clerk hold ethically permissible second positions within the town government (see e.g. Opinions 19-07 [town justice may serve as town trail maintenance worker; other permissible employment includes town park manager, town assessor or tax collector, and municipal historian]; 13-03 [town justice may permit the court clerk to serve as town clerk]), they may attend and participate in monthly town board meetings in their non-judicial/non-court capacities and be listed on the agenda in those capacities.¹

         In light of this conclusion and our Opinion 19-63, we now revisit Opinion 16-104 and Opinion 99-104. We continue to believe that a town or village judge must guard against the risk of “an appearance [that] the [justice] court is part of the executive branch serving under the ... direction and control” of the town board, town supervisor or village mayor (Opinion 16-104). Thus, the judge must not acquiesce in an attempt by town officials “to compel attendance” by the judge or court personnel, “as if the court were part of the executive branch” (id.).

         However, we also believe a judge should have discretion to determine whether or not the court’s interests need to be represented at monthly meetings of the executive branch. To harmonize these two interests, we conclude that a town justice may appear at monthly town board meetings on behalf of the town court if (a) the judge concludes it is in the best interest of the court to attend and (b) the judge is satisfied the agenda reflects the town court’s status as a co-equal branch of government, rather than a department subject to the town board’s direction and control. On the specific facts presented, the inquiring judge should arrange that, if and when they appear on behalf of the town court, the judge and/or court are listed separately from executive branch officers and employees and are not listed as a “department” of the town. Opinions 16-104 and 99-104 are hereby modified to the extent inconsistent with this opinion.

         Finally, we believe it is permissible to submit monthly cashbook and statute summary reports to the town board. As explained in Opinion 16-104:

Nor does [this opinion] prohibit a justice court clerk from complying with applicable statutes (see e.g. Opinion 11-92 [noting that a court clerk’s duties may include “electronically filing monthly audit and control reports; and presenting monthly reports to the municipality’s chief fiscal officer”]) or the judge from providing status reports to the village government where legally required and/or ethically permitted (see e.g. Opinion 15-215 [a justice court “may, subject to all applicable statutory provisions concerning confidential information or sealed records, present a monthly status report to the town or village board at a public board meeting”]).

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¹ As a reminder, a town justice who maintains non-judicial employment with the town must be alert for possible conflicts due to this outside employment. The scope of disqualification varies with the position, including whether it involves “high-level executive or management authority” (Opinion 19-07).