Opinion 92-10

January 30, 1992

NOTE: Former sections 25.39(e), 100.3(b)(5), and 100.7 have been superseded by 22 NYCRR 50.5(e), 100.5(C), and 100.5 respectively.  For guidance on Part 50 (formerly Part 25), court personnel may consult the Office of Court Administration’s Nonjudicial Ethics Helpline (888-283-8442).  Regarding the applicability of Part 50 to town and village justice courts, please see footnote 1 in Opinion 10-116.

Digest:         Town Justice Court employees, who are not personal appointees of a justice and members of the justice's personal staff, may engage in political activities, with certain exceptions, outside of court facilities and on their own time.

Rules:          22 NYCRR 100.3(b)(5), 100.7, 25.39(e).

Opinion:

         A town justice inquires whether the justice court staff, including an assistant, a court clerk, assistant court clerks and a town bailiff who serves as a court officer, must refrain from being members of political organizations, from holding office in a political party, from attending political meetings and gatherings or from engaging in any political conduct, except during the nine months prior to and three months following an election.

         Non-elective employees of the town employed in the justice court are appointed by the town board; the appointment of the court clerk by the town board requires the advice and consent of the town justice(s). Town Law §20.

         Section 100.3(b)(5) of the Rules of the Chief Administrator addresses political activity which is prohibited to staff members who are personally appointed by the judge and who are members of the judge's personal staff.

         As the justice court staff members are not personal appointees of the justice and members of the justice's personal staff, section 100.3(b)(5) does not govern their activities outside of court. Consequently, the justice court staff members may engage in most of the above-listed political activities on their own time. See Advisory Committee on Judicial Ethics Opinion 91-90, Vol. VIII.

         The justice, however, should forbid any political activities in court facilities and on court time. Additionally the justice court staff members should be instructed to make it clear that their political activities have nothing to do with the justice or the court. See 22 NYCRR 100.7 and Advisory Committee on Judicial Ethics Opinion 90-102, Vol. VII. In addition, town and village court employees are subject to the provisions of section 25.39(e) of the Career Service Rules of the Chief Judge of the State of New York [22 NYCRR 25.39(e)], which places certain limitations on all court employees' political activities:

(e) Political organizations. No employee of the unified court system may hold an elective office in a political party or a club or organization related to a political party, except that an employee may be a delegate to a judicial nominating convention or a member of a county committee other than the executive committee of a county committee.

         Therefore, the town justice also should advise court employees concerning the political activities prohibited to them by 22 NYCRR 25.39(e), which, with stated exceptions, includes holding elective office in a political party.