Opinion 24-51
March 14, 2024
Digest: A town justice may permit a town employee, who is paid out of both the judicial budget and the town budget and is expressly subject to the town justice’s supervision and control, to transport court funds to the bank for deposit, notwithstanding that the employee is also tasked with depositing other town funds into other bank accounts.
Rules: 22 NYCRR 100.2(A); 100.3(A); 100.3(C)(1)-(2); 214.9(a); Opinions 17-73; 12-43; 10-93; 09-116; 04-135; 1983 Ops St. Comp 83-174.
Opinion:
The inquiring town justice states that the town board plans to create a position for a single town employee to transport all funds received by town offices, including the court, to the bank. The proposed job description specifies “the employee would be subject to the town justices’ supervision and control regarding transporting funds the court receives to the bank for deposit and to observe the standards of fidelity and diligence that apply to the judges.” The proposed employee’s salary would be paid partly from the town court’s budget and partly from the town board’s budget. Currently, the town is reimbursing travel expenses for four town employees (two court clerks and two others) to travel over 40 miles round trip to make bank deposits.[1] It appears that the town board wishes to reduce the overall travel expenses, especially as the funds deposited on behalf of the court amount to roughly $100 per week. The town justice asks if the proposed arrangement is ethically permissible.
A judge must promote public confidence in the judiciary’s impartiality and must “respect and comply with the law” (22 NYCRR 100.2[A]). A judge’s judicial duties take precedence over all the judge’s other activities and include all the duties of a judge’s office prescribed by law (see 22 NYCRR 100.3[A]). In performing judicial duties, a judge must “diligently discharge” his/her administrative responsibilities (22 NYCRR 100.3[C][1]) 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]).
The New York State Comptroller has stated that a town justice is personally responsible for monies that the justice court receives and must therefore have direct supervision and control over the receipt and handling of such money (see 1983 Ops St. Comp No. 83-174). In turn, we have advised that a town justice cannot permit the town supervisor, mayor, treasurer, or village clerk to transport funds to the bank for deposit or be signatories on the town justice’s bank account (see Opinions 12-43; 09-116; 04-135; see also 22 NYCRR 214.9[a] [town or village judge must timely deposit “all monies received in his or her judicial capacity in a separate bank account in his or her name as such judicial officer”]).
In Opinion 10-93, a town justice inquired about the town’s proposal for one employee to transport all funds received by town offices to the bank for deposit. We said the proposal was impermissible because the employee “was not subject to the town justice’s supervision to transport funds the court receives to the bank for deposit” (id.). We emphasized that “[s]uch deposits should be made only by the town justice or a court employee subject to the town justice’s supervision and control” (id.). Similarly, in Opinion 17-73, we said that a village justice may not acquiesce to the combination of village court and village executive-branch clerical offices which would result in non-court personnel performing court functions such as accepting court fines and fees along with the court clerks.
Here, by contrast, the town board’s proposal indicates that the employee will be partly paid from the town court’s budget and will “be subject to the town justices’ supervision and control regarding transporting funds the court receives to the bank for deposit.” On these facts, we conclude that the position will be, in essence, a part-time town court employee subject to the town justices’ direction and control. Accordingly, the inquiring town justice may permit this town employee to transport court funds to the bank for deposit in the appropriate bank account, notwithstanding that the employee is also entrusted with other town funds that will be deposited in other accounts (see Opinions 12-43; 04-135).
[1] Consistent with prior opinions, only the town court clerks have been transporting monies received by the town justices to the bank for deposit.