Opinion 22-62

May 5, 2022

Digest:         (1) A town or village justice may participate in a court efficiency study ordered by the local municipality, but may not acquiesce in municipal actions that are likely to interfere with court operations or that will compromise the independence of judicial office. The judge should report any such actions to an appropriate supervising or administrative judge. (2) We cannot address legal or administrative questions, such as the allocation of authority to select, hire, assign and supervise various non-judicial personnel to work in the local justice courts, or whether a municipality may establish an appointive administrative judge position to handle certain matters.

Rules:          NY Const art VI, § 17; CPL 10.30; GML art 14-BB; Judiciary Law § 212(2)(l); Town Law § 20(1)(a)-(b); UJCA § 109; UJCA art 2; Village Law § 4-400(1)(c)(ii); 22 NYCRR 100.0(S); 100.1; 100.2(A); 100.3(B)(2); 100.3(C)(2); 101.1; Opinions 21-183; 20-124; 17-73; 19-124.

Opinion:

         A town/village justice asks about the propriety of various actions proposed by local municipal governments where the judge serves, such as commissioning a court efficiency study; hiring non-judicial court personnel; and establishing the position of town administrative judge.

         Most of these questions raise primarily legal issues that we cannot answer. The town and village justice courts are established by constitutional authority (see NY Const art VI, § 17), and their jurisdiction, functions and duties are set forth in multiple statutes (see e.g. UJCA art 2; CPL 10.30). We note that the Unified Court System’s Justice Court Manual addresses many issues unique to these courts, including a section on “Separation of Powers: Local Discretion and Judicial Independence” (pp. 16-19).¹

         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]).

1. Court Assessment Study

         The judge explains that the municipality has contracted with an outside agency to provide an assessment of the court’s “operations, staffing structure, and recommendations for improvement.” The work will include: a site visit to the justice court to view the facility and work spaces; interviews with court leadership and staff, including the justice(s), court staff and court security; data gathering on court operations and staffing, including court caseloads; assessing the frequency, timing and duration of court sessions, court processes and procedures, revenue and cost trends, and the use of technology to manage court work; and reviewing “relevant Office of Court Administration guidance and expectations.” The final report is expected to “document[] court operations and provid[e] recommendations for improved efficiency and/or effectiveness.”

         Initially, we note that the judge has asked if the municipality may order such a study “without the [judge’s] approval or even with the approval of the judge.” We cannot comment on the municipality’s legal authority or ethical obligations. Moreover, it appears that the municipality has already commissioned the study without the judge’s approval, and we also cannot comment on past conduct. Accordingly, we focus solely on the judge’s ethical obligations going forward, i.e. whether the judge may cooperate in the already-commissioned court study.

         In Opinion 21-183, we advised that a village justice may consent to the village’s proposed requirement that the village court clerk “punch in on a time clock.” As we explained (id. [citations omitted]):

We have repeatedly advised that a town or village justice must not acquiesce to actions by the municipality that infringe on judicial independence or create an appearance that the local justice court is part of the executive branch. Thus, a village justice must not grant police personnel unrestricted access to the court clerk’s office or judge’s chambers; nor may a village justice consent to combining the court’s clerical offices with executive branch operations; and a town justice must prohibit a town board member from spending the entire day in the court clerks’ office to monitor their work. Institutional and constitutional concerns can also arise when a municipality proposes to subject justices to corrective action or discipline at the local level, and justices must proceed cautiously when presented with such proposals.

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Here, the village’s request that the village court clerk punch in on a time clock, as all other village employees are required to, does not affect the justice’s ability to set the hours of the local court, establish court schedules, or supervise court staff. Because the village’s proposed requirement does not impact court operations, we conclude the justice may permit the court clerk to punch in.

         Bearing in mind that judicial independence must coexist with the municipality’s role in funding and staffing the justice courts, we conclude this judge may cooperate with the proposed court study “to the extent that it does not impact court operations” (cf. Opinion 19-124 [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”]).

         If and when the judge learns that the study or report recommends changes to court operations, the judge should consider those recommendations once they are made known to the judge. Only then will the judge be in a position to assess the legality and propriety of the recommended changes and to determine an appropriate course of action (cf. Opinion 21-183 [the judge “will be best situated to assess the situation as it unfolds”]).

         Beyond this we cannot comment in any detail as neither we nor the judge know what recommendations will be made, or what the municipality will do (or attempt to do) in response. Of course, the judge may not acquiesce in municipal actions that are likely to interfere with court operations or that will compromise the independence of judicial office. The judge should report any such actions to an appropriate supervising or administrative judge (see generally Opinion 20-124).

2. Hiring Court Clerks and Other Non-Judicial Court Personnel

         The judge’s questions about hiring court clerks and other non-judicial court personnel, and the respective roles of the judge and the municipality in this process, raise primarily legal questions (see e.g. Town Law § 20[1][a]-[b]; Village Law § 4-400[1][c][ii]; UJCA § 109 [“Each court shall have such non-judicial personnel as may be provided by the municipal board.”]). We cannot comment on any such legal questions (see e.g. Opinion 20-124; 22 NYCRR 101.1; Judiciary Law § 212[2][l]).

         However, we note that the Justice Court Manual discusses “Appointment, Termination, and Training” of court personnel (pp. 22-23), which may offer a starting point for research on such issues. This section expressly distinguishes between the treatment of a court clerk and all other non-judicial court personnel of the justice courts, as the court clerk “holds a unique position requiring the trust and confidence of the sitting justice(s), and is entrusted to handle a variety of matters on behalf of the justice(s) and the Justice Court.”

         As for potential ethics issues with respect to appointment of non-judicial court personnel, where the judge’s consent is legally required, clearly the judge should not acquiesce in an appointment made without the judge’s consent (cf. 22 NYCRR 100.2[A] [a judge “shall respect and comply with the law”]). Conversely, where the judge’s participation and/or consent is not legally required, the judge has no obligation to take any action with respect to an appointment unless the judge concludes the specific appointment is likely to unduly interfere with court operations. If so, the judge may consult with an appropriate supervising or administrative judge (see Opinion 20-124).²

3. Allocation of Supervisory Authority

         The judge asks whether the positions of justice court director, justice court clerks and other clerical court personnel are subject to supervision by the judges and what role municipal officials play in the supervision of court staff. These questions are again primarily legal, and, therefore, outside our purview.³

         However, we note that the Justice Court Manual (p. 25) offers a section called “Non-Judicial Court Personnel: Supervision and Employment Policies,” which may offer a starting point for research on such issues.

4. Town Administrative Judge

         The question of the propriety of the town appointing a town administrative judge and establishing a particular salary for that position (see generally GML art 14-BB) also presents primarily legal and not ethical issues.⁴

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¹ The Office of Justice Court Support posts the Justice Court Manual on their internal website for judges and clerks.

² We assume that non-judicial personnel who perform court clerk functions will complete the Office of Court Administration’s training and certification program for justice court clerks (cf. Opinion 17-73 [justice may not consent to combining the court’s clerical offices with executive branch operations]). If this is not the case in the judge’s court, the judge may consult with an appropriate supervising or administrative judge.

³ If the judge has encountered any specific incidents of supervisory overreaching or interference by municipal officials or any recalcitrance by those legally subject to the judge’s supervision, the inquiry does not reveal them. Absent such facts, we decline to speculate about ethics issues that could potentially arise concerning supervision of non-judicial court personnel.

⁴ We note that the inquiry provides no details about how establishment of a new town administrative judge position, at any salary level, would affect the inquiring judge, and we decline to speculate on this issue.