Opinion 96-64

June 13,1996

NOTE: Regarding the applicability of Part 50 (formerly Part 25) to town and village justice courts, please see footnote 1 in Opinion 10-116.

Digest:         The judges of a town court should not grant permission to the full-time clerk of that court to accept an appointment as a constable in the same town.

Rules:          22 NYCRR25.37 (a); 100.3 ( C) (2), 100.4 (A) (1), 100.4 ( C) (2) (b); CPL 2.10

Opinion:

         The two judges of a town court inquire whether a full-time clerk of that court may accept employment as a town constable. The latter position is defined as a peace officer (CPL 2.10) and such constables have the power to issue parking tickets, serve process, and perform other quasi-police functions.

         Section 100.3 ( C) (2) of the Rules Governing Judicial Conduct mandates that a judge “shall require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge. . .”. Rule 100.4 ( C) (2) (b) specifies that a judge shall not accept appointment or employment as a peace officer or police officer. . . .”

         Although not every ethical rule applicable to judges necessarily applies with the same force to staff members, under the particular circumstances presented here, where the extra-enforcement of local laws, and where the court in which the clerk is employed has jurisdiction in this area, the Committee believes that the dual employment position proposed by the clerk would be inappropriate and would cause the judges’ impartiality to be reasonably questioned. Therefore, the judges should not give the clerk the permission referred to in the Rules of the Chief Judge (22 NYCRR 25.37[a]).