Opinion 88-67

June 13, 1988

NOTE: This opinion has been modified to the extent inconsistent with Opinion 16-162. See footnote 2 of Opinion 16-162 for details.

NOTE: Former sections 100.2(a) and 100.5(h) have been superseded by 22 NYCRR 100.2(A) and 100.6(B)(4) respectively. The Chief Judge’s rules concerning dual employment of nonjudicial court employees now appear at 22 NYCRR 50.3.  For guidance on Part 50 (formerly Part 25), court personnel may consult the Office of Court Administration’s Nonjudicial Ethics Helpline (888-283-8442).

Topic:          Town Justice serving as part-time law clerk to Family Court Judge in the same county.

Digest:         A Town Justice may serve as a part-time law clerk to a Family Court Judge in the same county provided any Family Court matters which originated in the inquiring Town Justice’s Court are referred to a different Family Court Judge and provided that the Town Justice obtain prior written consent from his appointing authority and the approval of the Chief Administrative Judge of the Courts before assuming the additional position.

Rules:          22 NYCRR §§100.2(a), 100.5(h); Op. State Comp. 67-609(2); Rules of the Chief Judge 22 NYCRR 25.37.

Opinion:

         A town justice asks if he may serve as a part-time law clerk to a Family Court judge in the same county. He states that only a “handful” of town court cases have any potential Family Court involvement, and any such cases could be handled by the second town justice.

         There is no constitutional or statutory prohibition against a town justice simultaneously holding the position of law clerk to a judge of another court. Section 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.

         A basic rule governing all judicial conduct is set forth in section 100.2 of the Rules of the Chief Administrator of the Courts. Section 100.2(a) mandates that a judge “shall conduct himself or herself at all times in a manner that promotes public confidence in the integrity and independence of the judiciary.”

         The justice’s activities as a part-time law clerk to a Family Court Judge are sufficiently attenuated from town court operations to negate any direct conflict or incompatibility with his judicial office. Each of the two courts is a court of original jurisdiction and the jurisdiction of each court essentially concerns different subject matters. While the letter of inquiry indicates that there may be a handful of matters that came before the town court where there might be a potential for subsequent Family Court involvement, it also indicates that a second town justice would handle such matters. That procedure is recommended. Therefore, there is no legal or ethical incompatibility between the two positions. However, in his proposed capacity as a law clerk, the justice will be subject to section 25.37 of the Rules of the Chief Judge, which provides, in pertinent part, as follows:

No employee regularly employed in a position in the classified service in the Unified Court System shall, while continuing to hold such position, accept appointment or employment in any other position or title, or in any capacity whatsoever, on a full-time or part-time basis, either in the classified or unclassified service, in another department or agency of the state or a political subdivision, or in the legislature or the judiciary, for which employment compensation or salary is payable, without the previous consent in writing of his or her appointing authority, except that such consent shall be subject to the approval of the Chief Administrator of the Courts....

         In an analogous situation, the New York State Comptroller ruled in Opinion 67-609, that there was no incompatibility in, or prohibition against, the simultaneous holding, by an attorney, of a position as a confidential law clerk to a Supreme Court Justice and the town office of Justice of the Peace, provided the written consent of the applicable Appellate Division was obtained. Accordingly, the justice should apply to the Family Court Judge, his appointing authority, and to the Chief Administrative Judge of the Courts for permission to hold both positions.

         This Opinion is advisory only and is not binding upon the Commission on Judicial Conduct or the Office of Court Administration.