Opinion 96-92

September 5, 1996

Digest:         A part-time Town Justice may not serve as Town Clerk.

Rules:          22 NYCRR 100.6 (B)(4)

Opinion:

         A part-time justice of a town court inquires whether his/her judicial office is compatible with that of town clerk.

         Section 100.6 (B)(4) of the Rules of the Chief Administrator states that a part-time judge “may accept private 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 conflict or interfere with the proper performance of the judge’s duties”.

         The Committee notes, first, that non-lawyer town justices are, in general, required to file, with the town clerk, “a certificate of completion of a course of training prescribed by the administrative board of the judicial conference”, (see, Town Law section 31[2]). The Committee notes, second, that according to the Town Law, “no person shall be eligible to hold more than one elective town office . . .” (Town Law section 20.[4]). With respect to towns of the first class, the Town Law provides that the office of town justice and the office of town clerk are both elective (see Town Law section 20 [1] [a]). With respect to towns of the second class, the Town Law provides that the office of justice of the peace and the office of town clerk are both elective (see Town Law section 20 [1][6]).

         Under these circumstances, the Committee concludes that the two offices are incompatible (see, also Opinion 88-05).