Opinion 92-115

January 28, 1993

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Note: Former section 100.5(h) has been superseded by 22 NYCRR 100.6(B)(4). 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).

Digest:         A part-time Acting City Court Judge may serve as a part-time law clerk to a County Court Judge in the same county provided that appeals from decisions of the Acting City Court Judge should, if practicable, be referred to the other County Court Judge, but in any event, the clerk should not participate in any way in appeals from his actions as an Acting City Court Judge, and provided further that the Acting City Court Judge obtains prior written consent from the appointing authority and the approval of the Chief Administrator of the Courts before assuming the additional position.

Rules:          22 NYCRR 100.5(h); Rules of the Chief Judge 25.37

Opinion:

         A part-time Acting City Court Judge inquires whether the judge may accept an appointment as a part-time law clerk to a County Court Judge in the same county. The inquiring Judge advises that City Court cases rarely are appealed to County Court and that any such appeals could be considered by the other County Court Judge.

         No constitutional or statutory prohibition against an Acting City Court Judge simultaneously holding the position of part-time law clerk to a judge of another court has come to the Committee’s attention.

         Section 100.5(h) of the Rules of the Chief Administrator provides that “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.”

         Since the Acting City Court Judge’s work as a part-time law clerk to a County Court Judge is not incompatible with the proper performance of judicial duties, the inquiring Judge should be permitted to accept the appointment. We are informed that any appeals from decisions of the Acting City Court Judge will be referred to the other County Court Judge. If not referred, the clerk should not participate in any way in such appeals.

         Moreover, in the proposed position as a law clerk, the Acting City Court Judge should comply with section 25.37 of the Rules of the Chief Judge, which provides, in pertinent part:

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....

         Accordingly, the Acting City Court Judge should apply to the County Court Judge, to the appointing authority, and to the Chief Administrator of the Courts for permission to hold both positions.

         See this Committee’s Opinion 88-67 (Vol. II).