Opinion 24-187

December 12, 2024

Digest:  A town justice may consent to hiring a town court clerk who will remain employed in a purely clerical position in the County Attorney’s office, where that office conducts no business in the town justice court.

Rules:   Town Law § 20(1)(a); 22 NYCRR 100.2, (A); 100.3(C)(2); Opinions 21-163; 16-142; 15-175; 11-25; 07-142; 07-85; 06-125; 04-118; 01-43; 98-59; 97-107.       

Opinion:

          A town justice asks whether a town court clerk may also maintain full-time outside employment as a secretary in the County Attorney’s office.  The secretarial position is strictly clerical and has no involvement in policy decisions.  The County Attorney’s office has no criminal jurisdiction and does not appear in matters before the justice court.  In considering this inquiry, we note 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]).

          A judge must always avoid even the appearance of impropriety and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  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]).

          We have on several occasions advised whether a justice court clerk could ethically maintain concurrent employment elsewhere in the justice system.  For example, we have advised that a part-time court clerk may also maintain outside employment as an accountant in a county sheriff’s office (see Opinion 21-163), as a clerk in the local probation department (see Opinion 06-125), or as an assistant allocating funds and reconciling accounts at a substance abuse counseling and referral facility (see Opinion 15-175). 

          On the other hand, we have found it impermissible for a justice court clerk to serve as principal clerk for patrol operations in a sheriff’s office, where the position “performs more than routine clerical duties and has frequent contact with local justice courts” (Opinion 11-25).  We have also said a court clerk position “should not be filled by someone who is engaged in activities involving the training of police officers who will be appearing as witnesses in that court” (Opinion 04-118) or by a dispatcher in the local police department (see Opinion 98-59).  Nor may a justice court clerk maintain even “strictly clerical” or secretarial employment in the local police department (see Opinion 01-43), the local District Attorney’s office (see Opinions 16-142; 07-85), the Public Defender’s office (see Opinion 07-142), or the Public Defender’s private law office (see Opinion 97-107).

          The principal lines of differentiation in these opinions are whether the court clerk’s outside employment involves purely routine, clerical duties which are not intertwined with law enforcement functions; and whether the outside employer appears in the justice court.  Here, the applicant works in a purely clerical position for an agency that does not appear in the justice court.  We accordingly find the positions ethically compatible and conclude that the inquiring judge may consent to the hiring of a town court clerk who will remain employed full-time as a secretary in the County Attorney’s office.