Opinion 94-35

March 10, 1994

NOTE: Former sections 25.39(e) and 100.3(b)(5) have been superseded by 22 NYCRR 50.5(e) and 100.5(C) respectively.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:         A judge need not prohibit membership in a political party by the clerk of the Court who was not a personal appointee of the judge. Rule 25.39(e) of the Rules of the Chief Judge pertaining to the holding of elective office in a political organization applies.

Rule:            22 NYCRR §100.3 (b)(5), Rule 25.39(e) of the Rules of the Chief Judge.

Opinion:

         The clerk of the town court who was appointed by the town board upon the recommendation of the judge has been asked to join a political club. The judge inquires as to the propriety of the clerk's participation in the club.

         The clerk may become a member of the political organization mentioned. Since the clerk is not a personal appointee of the judge, section 100.3(b), (5) of the Rules of the Chief Administrator (22 NYCRR 100.3[b] [5]) pertaining to a judge's obligation to prohibit certain political activity by the judge’s staff, does not apply. There must, however, be compliance with Rule 25.39(e) of the Rules of the Chief Judge barring the holding of elective office in a political party, club or organization (with certain exceptions).