Opinion 92-56

May 7, 1992

NOTE: Former sections 25.39(e) and 100.3(b)(5) have been superseded by 22 NYCRR 50.5(e) and 100.5(C) respectively.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:         Court employees, although appointed by the judges in their capacity as administrators of the town court office of administration, are not personal appointees of a part-time judge on the judge’s personal staff, and may engage in political activities, with certain exceptions, outside of court facilities and on their own time.

Rules:          22 NYCRR 100.3 (b) (5); 25.39 (e)

Opinion:

         A part-time judge inquires whether the court staff, including an assistant, 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.

         Under a local law of the judge’s town, the town board established a court office of administration department to administer the local court. The administrator of that department is empowered to and does appoint and remove court employees. The town board has designated the part-time judges to serve as administrator and deputy administrator. Consequently, the court staff members are appointed by the judges, albeit in their capacity as administrators of the town’s court office of administration department.

         Section 100.3 (b) (5) of the Rules of the Chief Administrator addresses political activity which is prohibited to employees who are personal appointees of the judge and who are members of the judge’s personal staff. Under this section, the judge’s personal staff may be members of a political party, but are restricted from holding political office and from certain political fundraising activity.

         Section 25-39 (e) of the Career Service Rules of the Chief Judge of the State of New York (22 NYCRR 25.39 (e)) applies to the court staff appointees who are not personal appointees of the judges and who are not members of the judge’s personal staff. (See, Advisory Committee of the Judicial Ethics Opinion 91-90, Vol VIII, to which the Committee adheres). As the court clerks and other court employees here do not appear to be personal appointees of the judges and members of the judges’ personal staffs within the meaning of section 100.3 (b) (5), they are not restricted by section 100.3 (b) (5) and may engage in such activities as are permissible to court employees generally, within the provisions of section 25.39, so long as such activities are not performed on court time or on the court premises.