June 18, 2013
This responds to your inquiry (13-01) asking whether you may permit a town employee to perform work in the court office when a regular court staff member is absent due to a vacation or illness. You advise that the employee normally works in the tax assessor’s and code enforcement offices. You further advise that his/her duties in the code enforcement office are clerical in nature, and do not involve conducting investigations, writing up code violations or appearing in court on code violation cases.
A judge must always act to avoid even the appearance of impropriety (see 22 NYCRR 100.2) and to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). The Committee previously has advised that a judge may not employ an individual as the court clerk or in another court staff position when the individual will also be employed by a law enforcement agency in a capacity that calls for personal involvement in law enforcement activities (see Opinions 11-25 [principal clerk of patrol operations for county sheriff’s department performs more than routine clerical duties]; 10-67 [park ranger for same village]; 10-20 [part-time constable for same town]; 04-118 [secretary for police academy involved in training exercises]; 01-43 [clerk to the village police department). In the Committee’s view, the employment involved in each case might call into question the impartiality of the judiciary (see Opinion 06-125), particularly because court personnel have access to court records (see Opinion 10-20). However, where the court clerk would also work for the probation department in a strictly clerical capacity answering the telephone, reconciling bank statements, keeping the department’s books, disbursing restitution payments and performing general clerical duties, the Committee concluded that such duties would not compromise the court’s impartiality (see Opinion 06-125).
Therefore, where a town employee’s duties in the code enforcement office are strictly clerical in nature, and the court clerk will not be personally involved in law enforcement or prosecutorial activities, you may permit the employee to perform work in the court office when a regular court staff member is absent due to a vacation or illness. However, you should not permit the town employee to be involved in code enforcement matters, including performing any clerical functions associated with those matters.
I have enclosed Opinions 11-25, 10-67, 10-20, 06-125, 04-118, and 01-43 for your convenience.
Very truly yours,
George D. Marlow
Assoc. Justice, Appellate Division First Dept. (Ret.)