Opinion 21-183

January 27, 2022


Digest:         A village justice may consent to the village’s proposed requirement that the village court clerk punch in on a time clock, as other village employees do.


Rules:          Village Law §§ 3-301(2)(a); 4-400; 22 NYCRR 100.0(S); 100.1; 100.3(C)(1); 100.3(C)(2); 214.2; Opinions 20-124; 19-124; 19-80; 17-73; 17-32; 16-55.


         A village justice states that the village wishes to start tracking the time of the “exempt, salaried” village court clerk, and asks if requiring the court clerk to punch in on a time clock would impermissibly infringe on judicial independence. The justice says the court clerk is in the state retirement system, and currently complies with applicable time-keeping regulations by “submitting three months of employment activity.” The justice is aware that, in addition to the court clerk, some other village employees have previously not been required to “punch in.” Now, however, the village wants “conformity” in time-keeping practices for all village employees. Village officials have also advised the justice that if they found the court clerk was only punching in, for example, “three hours a week,” the village would have to “do something about it.”

         A judge must uphold the judiciary’s integrity, impartiality, and independence (see 22 NYCRR 100.1; 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control.”]). A judge “shall diligently discharge the judge’s administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration” (22 NYCRR 100.3[C][1]) as well as “require staff, court officials and others subject to the judge’s direction and control to observe standards of fidelity and diligence that apply to the judge” (22 NYCRR 100.3[C][2]).”

         A village court “is a separate and independent branch of government[,] distinct from the mayor, clerk, board and other village executive branch and legislative branch offices” (Opinion 17-73). Nonetheless, we have recognized that the town and village justice courts, which are funded by the local municipality, have a different statutory scheme than the state-paid courts. For example, the mayor appoints the village court clerk “upon the advice and consent of the village justice” (id., quoting Village Law § 4-400), and a village court clerk who works solely for the village justice(s) “shall be discharged only upon [their] advice and consent” (Village Law § 3-301[2][a]). As described in the Unified Court System’s Justice Court Manual at 21 (footnote omitted):

Justices are responsible for court operations and for supervising their non-judicial staff, but must do so in accordance with the general employment policies established by the town or the village to the extent that these policies do not conflict with any State statute, regulation or rule. For example, while the employment policy may establish standard workdays for all town or village employees, State court rules [22 NYCRR 214.2] require that justices set the hours of the local Justice Court. Since justices set the court hours and the non-judicial personnel are required for the operation of the court, it is the justice who establishes the schedules of the Justice Court’s non-judicial personnel.


         We have repeatedly advised that a town or village justice must not acquiesce to actions by the municipality that infringe on judicial independence or create an appearance that the local justice court is part of the executive branch. Thus, a village justice must not grant police personnel unrestricted access to the court clerk’s office or judge’s chambers (see Opinion 20-124); nor may a village justice consent to combining the court’s clerical offices with executive branch operations (see Opinion 17-73); and a town justice must prohibit a town board member from spending the entire day in the court clerks’ office to monitor their work (see Opinion 19-124). Institutional and constitutional concerns can also arise when a municipality proposes to subject justices to corrective action or discipline at the local level, and justices must proceed cautiously when presented with such proposals (see Opinions 19-80; 16-55 [a justice’s “voluntary submission to the authority of the [local governing body] for discipline and/or removal,” contrary to the constitutional scheme, “would raise serious separation-of-powers concerns, and otherwise infringe on the judiciary’s independence”]).


         These separation-of-powers concerns do not necessarily apply with equal force to court clerks, however (see Opinion 17-32). Thus, we have opined that a town justice may permit the court clerks to certify they will abide by the town’s ethics code, even though the town judge should not so certify, provided the ethics code does not interfere with court operations (see id.). We have also said a village justice may permit a court clerk to certify they will abide by the municipality’s sexual harassment policy, even though the judge should not agree to be bound by it, absent any other legal requirement (see Opinion 19-80).


         Here, the village’s request that the village court clerk punch in on a time clock, as all other village employees are required to, does not affect the justice’s ability to set the hours of the local court, establish court schedules, or supervise court staff. Because the village’s proposed requirement does not impact court operations, we conclude the justice may permit the court clerk to punch in.


         While we see no indication, on the facts presented, that the new time-keeping requirements are likely to interfere with court operations, we note that the inquiring judge will be best situated to assess the situation as it unfolds. In that light, we note that we have advised, in connection with a municipality’s proposed court officer appointment, that a judge “should not consent to an arrangement [the judge] believes is improper” (see Opinion 20-124 [declining to opine on the legal question of whether the judge’s consent is required]). We further noted that “if the judge believes the village’s appointment unduly interferes with the court’s operations the judge may ... consult with [the] appropriate administrative judge and once the judge does so, he/she has no further ethical obligation” (id. [citations omitted]).