Opinion 24-69

May 9, 2024

Digest:  The Rules Governing Judicial Conduct do not prohibit a town justice from simultaneously serving as commissioner of jurors and as chief clerk of the Supreme and County Court, subject to appropriate administrative approvals.

Rules:  22 NYCRR 50.3(a); 100.2; 100.2(A); 100.6(B)(4); Opinions 23-66; 20-64; 17-46; 11-22; 10-200/11-74; 10-28; 08-172; 05-50; 03-99; 1978 NY Ops Atty Gen (Inf) 187; 1966 NY Ops Atty Gen No. 176.

Opinion: 

          The inquirer asks if it is ethically permissible to hold simultaneously the positions of town justice, commissioner of jurors, and chief clerk of the Supreme and County Court within the same county.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes 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 (see 22 NYCRR 100.6[B][4]).

          We have advised that the position of town justice is not ethically incompatible with that of chief clerk of a City Court, County Court, or Supreme Court, even in the same county (see Opinions 20-64; 08-172; 03-99).  Where a part-time judge serves as chief clerk in County Court, however, the judge “must be insulated in County Court from involvement in matters (a) appealed from the town court or (b) in which any judge of his/her town court exercised preliminary jurisdiction” (Opinion 20-64).  We have also recognized that a nonjudicial court employee must obtain appropriate administrative approvals for dual employment as a part-time judge under section 50.3(a) of the Rules of the Chief Judge (see Opinions 08-172; 03-99; 22 NYCRR 50.3[a] [requiring “the previous consent in writing of his or her appointing authority, … subject to approval by the Chief Administrator of the Courts”]). 

          The novel issue here is that the inquirer also wishes to serve simultaneously as the commissioner of jurors.  When considering whether a town justice may hold other commissioner-type roles in state or county agencies, we have often focused on whether the outside employment may involve law enforcement functions or substantial local controversy.  For example, we said a part-time judge may serve as head of a county agency responsible for enforcing a particular county law, where the agency is the licensing authority for an industry and has authority to commence civil administrative proceedings but (i) is unlikely to be involved directly or indirectly in any cases in the judge’s court, (ii) has no authority to prosecute legal or criminal proceedings in any court, and (iii) has no police powers or functions (see Opinion 17-46).  Similarly, we said a town justice may serve as commissioner of the New York State Council of Parks, Restoration and Historic Preservation (see Opinion 10-28).  By contrast, we advised a town justice may not serve as the county’s deputy commissioner of public safety because “the duties of that office involve various law enforcement functions” (Opinion 05-50).  We also said a town justice may not serve as a fire district commissioner where the commissioners’ primary function is to submit the fire company’s budget for public hearing, because that role “may involve the judge in highly visible political and controversial issues involving local budgets and taxes” (Opinion 11-22). 

          In addition, a position with county government may be problematic if it involves oversight of attorneys or agencies that appear before the part-time judge’s court.  Thus, we have advised that a part-time judge may not serve as administrator or deputy administrator of their county’s assigned counsel program (see Opinions 23-66 [discussing rationales from prior opinions]) or as County Manager and Budget Officer, where the position “oversees the budgets of . . . the local district attorney and public defender whose attorneys will appear before the judge” (Opinion 10-200/11-74). 

          It appears that the position of commissioner of jurors does not involve law enforcement functions or substantial local controversy and is unlikely to generate impermissible interactions with litigants or attorneys that will appear before the judge.  Nor do the positions of town justice and commissioner of jurors appear to involve incompatible oversight or approval responsibilities (cf. 1978 NY Ops Atty Gen [Inf] 187; 1966 NY Ops Atty Gen No. 176). 

          Accordingly, assuming the positions are legally compatible, we conclude a town justice may serve simultaneously as commissioner of jurors and as chief clerk of the Supreme and County Court, subject to appropriate administrative approvals.