June 11, 2015
Digest: A town judge may permit a court clerk, who was previously employed as the local police chief’s confidential secretary, to meet with the police department and town administration and explain notes the court clerk made during his/her prior employment.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(C)(2); Opinions 13-43; 11-96; 11-25; 10-154; 07-153; 04-118; 04-67; 01-43; 98-118; 98-59; 96-64; 95-116; 95-20; 90-26.
A town judge inquires if he/she may, at the request of the town supervisor, permit a full-time court clerk, who was previously employed as a confidential secretary to the chief of the town police department, to “sit in on a meeting and explain notes [the court clerk] made regarding police over time while [he/she] was employed as the Confidential Secretary to the Chief of Police.”
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge also must require court personnel subject to the judge’s direction or control to observe the standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C]).
The Committee has advised that a judge may not permit a court clerk to be simultaneously employed as part-time assistant to the chief of police (see Opinion 13-43; see also Opinions 11-25 [part-time town court clerk as principal clerk of patrol operations for county sheriff’s department]; 10-154 [village court clerk as receptionist/clerk for village police department]; 01-43 [village court clerk as clerk for the village police department]; 04-118 [village court clerk as secretary for police academy; attends and participates in training exercises]; 98-59 [village court clerk as dispatcher in village police department]). In these instances, the Committee has identified “the strong appearance of impropriety and/or partiality ‘where the extra-judicial office referred to is one which directly involves the enforcement of local laws, and ... the court in which the clerk is employed has jurisdiction in this area’” (Opinion 11-25, quoting Opinion 96-64).
However, analogous to this inquiry, this Committee has also advised that judges may provide affidavits and/or testify as fact witnesses in proceedings where they have personal knowledge (see Opinion 07-153 [judge may provide affidavit related to his/her prior employment as a public defender]; see also Opinions 11-96 [judge who had prosecuted a criminal matter prior to taking judicial office may “review the file and provide historical information” to the current prosecutor, but “must not offer legal or tactical advice to assist the prosecutor in the re-trial”]; 04-67 [a judge may provide an affirmation concerning a durable power of attorney that the judge prepared as a private attorney before assuming the bench]; 98-118 [a judge may provide an affidavit and testify as a fact witness regarding an accident the judge witnessed]; 90-26 [a judge may testify at a trial where the judge’s daughter is a party]).
In the instant inquiry, this court clerk is not being re-employed by the police department, but rather is asked to provide information, like a fact witness would, concerning the meaning and context of the notes previously made by the court clerk. Just as a full-time judge may not practice law but may attest to or testify about facts known to him/her from his/her prior employment (see e.g. Opinions 07-153; 04-67; 95-116; 95-20), the Committee believes a judge may permit a court clerk to meet with and provide factual information to his/her former employer concerning matters personally known to him/her.
Thus, this judge may allow the clerk, who previously served as the chief’s confidential secretary, to meet with police department and town administration members to explain and give historical background concerning his/her notes made while previously employed by the police chief. The Committee anticipates the clerk will provide historical background, rather than advice or recommendations (cf. Opinion 11-96), minimize any discussion of his/her current employment with the town court, and abide by any other cautions or restrictions this judge may impose.