Opinion 22-28

March 10, 2022

Digest:         (1) An associate village justice may not simultaneously serve as deputy clerk/treasurer for the village.
(2) An associate village justice may serve as (a) deputy clerk/treasurer for the town which encompasses the village, (b) deputy registrar of vital statistics for the village and/or (c) deputy registrar of vital Statistics for the town.
(3) A judge may observe court sessions over which other judges preside for educational purposes, whether as part of a formal Unified Court System mentor program or informally, subject to any applicable rule and statute limitations.

Rules:          Village Law §3-300(3); 22 NYCRR 100.2; 100.2(A); 100.3(B)(1); 100.5(B); 100.6(B)(4); Opinions 19-08; 18-18; 10-154; 09-140; 2014 NY Ops Atty Gen (Inf) 1.

Opinion:

         An associate village justice asks several questions about holding additional nonjudicial positions in the village and the town which encompasses it, and about attending other judges’ court sessions for educational purposes. We discuss these questions below.

1. Outside Employment

         The village justice first asks if it is ethically permissible to serve simultaneously as deputy clerk/treasurer for the village, deputy clerk/treasurer for the town which encompasses the village, deputy registrar of vital statistics for the village, and deputy registrar of vital statistics for the town.

         A judge must 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 part-time judge may accept public employment in a federal, state or municipal department or agency if the employment is not incompatible with judicial office and does not conflict or interfere with proper performance of judicial duties (see 22 NYCRR 100.6[B][4]).

         Initially, we note that all three village positions described - associate village justice, deputy village clerk/treasurer, and deputy registrar of vital statistics for the village - appear to be appointive offices, rather than elective ones. Thus, we understand the prohibition on simultaneously holding an elective and appointive office in the same village does not apply (see Opinion 09-140; Village Law §3-300[3]). It is also significant that the contemplated nonjudicial positions are appointive, rather than elective, for purposes of the resign-to-run rule (see 22 NYCRR 100.5[B] [“A judge shall resign from judicial office upon becoming a candidate for elective non-judicial office”]).

         The Attorney General has opined that the positions of village court clerk and village clerk/deputy treasurer are not compatible (see 2014 NY Ops Atty Gen [Inf] 1).¹ The Attorney General concluded that:

Because the court clerk transmits these funds to the Village, and the treasurer maintains the funds and transfers some portion of them to the county and State, the two officials serve as a fiscal check on each other and a safeguard for these funds. Having one person serve as both treasurer and court clerk would compromise this fiscal check. The duties of the positions therefore conflict and the positions are incompatible. One person may not perform the duties of both positions simultaneously, whether they are combined into one or the same person is appointed to both.

This same incompatibility of functions exists for the deputy treasurer, because that person performs the duties and exercises the powers of the treasurer in the treasurer's absence, see Public Officers Law § 9. Thus, the same reasoning prevents the deputy treasurer from also performing the duties of court clerk.

         Clearly the same impediment will apply to an individual simultaneously holding the position of associate village justice and deputy village clerk/treasurer in the same village. That is, the funds being transferred to the village clerk/treasurer include court funds collected by the judge in their judicial capacity. If it is incompatible for the court clerk to act in this dual capacity with respect to the funds for which the judge is responsible, it is also likewise incompatible for the judge. We thus conclude this associate village justice may not simultaneously serve as deputy clerk/treasurer for the same village.

         Regarding the position of deputy clerk/treasurer for the town, however, we see no conflict which would prohibit this judge from simultaneously holding both the offices of associate village justice and deputy town clerk/treasurer.

         Similarly, we see no conflict with this judge simultaneously holding the offices of associate village justice and deputy registrar of vital statistics for the town and/or village, assuming this does not result in frequent disqualification.

2. Observing Judicial Proceedings

         The judge next asks if they may, as an acting village justice, attend and observe the operations of the village court while the village justice is presiding, for educational purposes (that is, to gain “practical knowledge of the workings of the Court”). Likewise, the judge asks if they may attend other local justice court sessions as an observer for this purpose.

         Here, we note a judge’s obligation to “be faithful to the law and maintain professional competence in it” (22 NYCRR 100.3[B][1]). We have previously advised that a judge may consult ex parte with elected or appointed judges, even if they preside in courts other than the Unified Court System, concerning cases before him/her, although in doing so, the judge should make reasonable efforts to preserve confidentiality (see Opinion 19-08). In Opinion 19-08, the inquiring judge wanted to consult with the judge’s “former mentor,” who was fully retired from the Unified Court System but now presides in a tribal court. We see no difference with a judge merely observing court sessions over which other judges preside, for educational purposes, whether as part of a formal UCS mentor program or informally, subject to any applicable statutory or regulatory limitations.²

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¹ Our prior conclusion that a village justice “may permit the village court clerk to also serve as a clerk for the same village where the judge presides” involved a village court clerk serving as a village clerk; there was no indication that the village clerk would also serve as treasurer or deputy treasurer for the village (Opinion 10-154).

² We note this judge is not seeking out court proceedings involving a friend, relative, or mentee, where a judge’s attendance is subject to certain limitations to avoid any possible appearance of impropriety (see e.g. Opinion 18-18)