Opinion 24-45
March 14, 2024
Digest: A part-time town justice may also serve as appointed village treasurer of a village within the town.
Rules: 22 NYCRR 100.2; 100.2(A); 100.5(B); 100.6(B)(4); Opinions 22-28; 05-04; 2014 NY Ops Atty Gen (Inf) 1.
Opinion:
A town justice asks if it is ethically permissible to serve as an appointed village treasurer of a village partially located within the town.[1] Town funds are not shared with the village.
A judge must always 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, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]).
Although an associate village justice may not simultaneously serve as “deputy clerk/treasurer for the [same] village,” we said the judge may serve as “deputy clerk/treasurer for the town which encompasses the village” (Opinion 22-28). We noted that in the case of a village justice serving as village clerk/treasurer, “the funds being transferred to the village clerk/treasurer include court funds collected by the judge in their judicial capacity” (id.). Since the two positions are expected to function as a fiscal check on each other to safeguard these funds, the positions are ethically incompatible (id., citing 2014 NY Ops Atty Gen [Inf] 1 [village court clerk and village treasurer serve as a fiscal check on each other, and having one person serve as both treasurer and clerk would compromise this fiscal check]). That concern does not exist in the case of a village justice who also serves as a town clerk/treasurer in a separate jurisdiction.[2]
The same analysis applies here, as it appears that the inquiring town justice will remit town court funds to a separate individual who serves as the town’s chief fiscal officer, rather than to the village treasurer. Likewise, the village treasurer will presumably receive certain funds remitted from the village court, where the inquiring judge does not serve, in addition to other monies from non-court sources (cf. Opinion 05-04 [permissible clerical duties in the village clerk’s office included “answering the telephone, accepting payments for taxes and water bills, and performing other general office tasks”]).
Accordingly, the town justice may also serve as an appointed village treasurer (see Opinion 22-28).
[1] Because the position is appointive, rather than elective, the resign-to-run rule does not apply (see 22 NYCRR 100.5[B]).
[2] As explained in the Justice Court Manual, each town or village justice must “maintain an official bank account in his or her name as judicial officer” and “deposit all monies received in his or her judicial capacity … within 72 hours of collection” (at 47). Disbursements from such justice court accounts may include “returning bail, transferring monies to other courts, or remitting monies to the chief financial officer of the municipality” (id. at 63).