Opinion 98-59

Opinion 98-59 June 19, 1998 Digest: A village justice should not consent to the appointment by the village mayor, of a dispatcher in the village police department to also serve as court clerk in the Village Court.

Rules:    Village Law §4-400;
              22 NYCRR 100.2(A);
              Opinions 96-64 (Vol. XIV);
              95-106 (Vol. XIII); 91-149 (Vol. VIII).

Opinion:

A village justice asks if it is proper to consent to the appointment by the mayor, of a part-time dispatcher in the Village Police Department to also serve as a part-time court clerk in the Village Court. Village Law §4-400 makes it the responsibility of the mayor to appoint the village court clerk with the advice and consent of the village justice.

In Opinion 95-106 (Vol. XIII), the Committee stated that a part-time judge should not serve as a 911 dispatcher in the same county where the judge presides in view of the fact that such a position is one which is "so closely related to ongoing police activity."

Whether the same considerations apply to court personnel as well as judges was considered by the Committee in Opinion 96-64 (Vol XIV), where the Committee concluded that the judges of a town court should not permit the clerk of the court to accept employment as a town constable. As stated by the Committee:

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-judicial office referred to is one which directly
involves the 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.

Applying both opinions to the instant matter, the Committee concludes that to allow the police dispatcher to serve as court clerk would erode "public confidence in the integrity and impartiality of the judiciary" in contravention of section 100.2(A) of the Rules Governing Judicial Conduct. This is not to say that a court employee may never serve in any civilian capacity in a police department (see e.g., Opinion 91-149 [Vol. VIII]). But it does mean that where the nature of the work involves the employee in ongoing police activity in which the employee is a participant and of which the employee is acquiring knowledge in "real time," there is a fundamental incompatibility between the two positions. Accordingly, the Committee is of the opinion that the inquirer should not consent to the appointment.