Opinion 24-186

December 12, 2024

Digest:   A village justice may not permit his/her part-time court clerk to maintain outside employment as a traffic diversion program coordinator in the District Attorney’s office within the same county.

Rules:    22 NYCRR 100.0(S); 100.1; 100.2; 100.2(A); 100.3(C)(2); Opinions 22-58; 21-163; 16-142; 15-115; 10-154; 07-85.

Opinion:       

          The inquiring village justice asks if he/she may permit the part-time court clerk to maintain outside employment as the “Traffic Diversion Program Coordinator” within the same county.  As we understand it, a defendant motorist charged with certain Vehicle and Traffic Law violations may apply to the District Attorney’s office to participate in the traffic diversion program.  Subject to approval by the District Attorney, a defendant may pay the District Attorney’s office a monetary fee, take a traffic safety course, and then expect to have the case dismissed by the People.  The traffic diversion program coordinator position is thus part of the District Attorney’s office, albeit with “strictly clerical” duties such as: providing program information to interested defendants; assisting them in the application process by explaining procedures and requirements; determining eligibility; reviewing applications for completeness, accuracy, and adherence to program rules; collecting fees; and issuing letters to defendant motorists acknowledging receipt of their applications, acceptance into the program, and completion.  According to the District Attorney’s website, the position also serves as a “liaison” to the county’s town and village justices.  Indeed, we understand that this inquiring village justice hears Vehicle and Traffic Law matters that may potentially be subject to the traffic diversion program.

          A judge must always avoid even the appearance of impropriety and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  A judge must also uphold the judiciary’s integrity, impartiality, and independence (see 22 NYCRR 100.1; 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control.”]).  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]).

          As explained in Opinion 21-163 (citations and paragraph breaks omitted):

[T]own and village justices generally may allow court clerks to engage in outside employment that is compatible with the clerk’s service with the court.   In some instances, we have focused on the “strictly clerical” nature of the proposed outside employment in concluding it was permissible. . . . [T]he question before us is whether we should . . . 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 or in a role that may involve interaction with the general public.

          However, when the outside employment is with a prosecutor or law enforcement agency that regularly appears in the judge’s court, greater caution is warranted.  For example, a town justice may not allow his/her part-time court clerk to simultaneously maintain employment as assistant to the local prosecutor whose office regularly appears in the justice court on criminal matters, even in a “strictly clerical capacity” (Opinion 16-142).  We explained that a court clerk’s “close ongoing working relationship with the local prosecutor who regularly appears in the court would . . . erode public confidence in the judiciary’s impartiality” (id.).  Likewise, a local justice must not permit the court clerk to work full-time as a secretary in the District Attorney’s office (see Opinion 07-85; see also Opinion 22-58 [advising town court clerk may not serve as matron in town police department and discussing prior opinions]).  In each of these situations our primary concern was that allowing the outside employment would erode public confidence in the integrity and impartiality of the judiciary (see Opinion 15-115 [summarizing prior opinions briefly and noting “strong appearance of impropriety and/or partiality” in such simultaneous employment]).

          In the present inquiry, the diversion program coordinator role is not only within the District Attorney’s office, but it also involves meaningful interaction with the public, and more specifically with defendant motorists who have been charged with Vehicle and Traffic Law violations (cf. Opinion 10-154 [concluding part-time court clerk may not serve as “receptionist/clerk” for local police department]).  This interaction includes communication of program information to defendants, review of their applications, and acceptance of related fees.  Under these circumstances, we conclude that employment as the traffic diversion program coordinator in the District Attorney’s office is incompatible with service as part-time village court clerk.