Opinion 88-05

April 11, 1988

Topic:          Part-time Town Justice serving as a Deputy County Clerk in same county.

Digest:         A Town Justice may also serve as a Deputy County Clerk in charge of motor vehicle operations in the county where he presides, provided that if he is called upon to act in the place and stead of the County Clerk, he must resign from one of the two positions.

Rules:          22 NYCRR 100.5(h); Uniform Justice Court Act §1701; County Law §525, 526; Op. State Comp. 68-412.

Opinion:

         A Town Justice, who has served in that position since January 1, 1986, asks if he can continue to so serve in light of his appointment, effective January 1, 1988, as Deputy County Clerk in charge of motor vehicle operations. His new position involves supervising a staff engaged in, among other things, the reissuing of New York registration plates and operators’ licenses. His services as Deputy County Clerk, which are paid for by the County, are performed at the County Courthouse which is located in a community other than the one where he serves as Town Justice, although both communities are located in the same county.

         Rule 100.5(h) of the Rules of the Chief Administrator addresses the issue of “employment of part-time judges” as follows:

A part-time judge may accept private employment or public employment in a Federal, State or municipal department or agency, provided that such employment is not incompatible with judicial office and does not interfere with the proper performance of the judge’s duty. No judge shall accept employment as a peace officer as that term is defined in section 1.20 of the Criminal Procedure Law.

         A county agency such as the County Clerk’s office can be construed as falling within the parameters of permissible “public employment” under the above rule (see, e.g., General Construction Law §66, subd. 2, which defines the term “municipal corporation” to include a county, city, or town).

         The rule further requires that the employment involves proper performance of the judge’s duty. The County Clerk serves not only as the clerk of the county but also as the clerk of the Supreme and County courts within his county (see County Law, section 525) . Deputies to the County Clerk are usually separated by function and a deputy whose work is primarily on “county” matters is paid by the county (see Op. Of Atty. Gen. 6/27/80), as is here the case.

         It would appear, therefore, that the Justice’s activities as a deputy in charge of Motor Vehicle Operations are sufficiently attenuated from court operations to negate any direct conflict or incompatibility with his judicial office. Nor based upon the facts submitted is there any reason to believe that the hours during which the Deputy County Clerk performs his duties would interfere with the performance of his Town Justice duties.

         The only caveat which must be extended relates to the potential conflict which would arise in the event the Deputy County Clerk is designated to serve in the place and stead of the County Clerk during a vacancy in that office, or during the temporary absence, or inability of the County Clerk to perform his duties. The County Clerk could not simultaneously hold that position and the position of Town Justice, since both are elected positions (see County Law, section 411) . While the position of Deputy County Clerk is appointive, such Deputy, whatever the precise nature of his duties within the office while serving as Deputy, is eligible to, and under certain circumstances is required to, assume and exercise all of the powers and duties of the County Clerk in the Clerk’s absence or in the event of a vacancy in the office of County Clerk. (See Op. State Comp.68-412 ; County Law, sec. 526) . Therefore, in such circumstances, if the Deputy County Clerk making the inquiry is designated to act in the place and stead of the County Clerk, it would be necessary for him to resign from one or the other of his two offices. Absent such contingency, however, he may occupy both positions.

         This opinion is advisory only and does not bind either the Office of Court Administration or the Commission on Judicial Conduct.