October 20, 2016
Digest: A town or village justice may not permit a part-time court clerk to accept outside employment as assistant to the local prosecutor that regularly appears in his/her court.
Rules: 22 NYCRR 100.1; 100.2; 100.3(C)(2); Opinions 16-101; 15-197(B); 15-175; 15-115; 13-43; 13-01; 10-154; 07-196; 07-142; 07-85; 06-125; 01-43; 97-107.
Effective September 2016, the Committee advised that local justice courts may not routinely notify prosecution witnesses of their upcoming court appearances (see Opinions 16-101; 15-197[B]). Now, a supervising judge asks whether a town or village justice may permit a part-time court clerk to assume a second part-time position with the same municipality, working for the municipal prosecutor in a strictly clerical capacity. The clerk would “notice witnesses for court proceedings” and perform other clerical work as directed. The municipality would pay the clerk’s salary “not from the court’s budget, and provide him/her with a separate office” distinct from the court office.
A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1) and must always avoid even the appearance of impropriety (see 22 NYCRR 100.2). A judge must also “require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge” (22 NYCRR 100.3[C]).
Town and village justices generally may allow court clerks to engage in outside employment that is compatible with the clerk’s service with the court. For example, absent any legal incompatibility in the positions, a town justice may allow the town’s full-time bookkeeper, office manager and receptionist to serve as town court clerk (see Opinion 07-196). In some circumstances, a potential conflict may be avoided if the clerk’s outside employment is “strictly clerical” in nature (see Opinions 06-125 [court clerk performs “routine” clerical in the county probation department]; 13-01 [individual who performs strictly clerical work in town code enforcement office may serve as substitute court clerk, but must be insulated from code enforcement matters]; 15-175 [court clerk performs strictly clerical work at substance abuse facility, where he/she is fully insulated from patients and their records]).
However, a town or village justice may not permit a court clerk to maintain outside employment with the same police department that serves the judge’s court (see Opinions 13-43 [part-time assistant court clerk as assistant to the municipality’s Police Chief]; 10-154 [village court clerk as receptionist/clerk for village police department]; 01-43 [village court clerk as clerk for the village police department]; see also generally Opinion 15-115 [briefly summarizing prior opinions and noting the “strong appearance of impropriety and/or partiality” in such simultaneous employment]). In the Committee’s view, a “court clerk’s involvement in on-going police activity would erode public confidence in the integrity and impartiality of the judiciary” (Opinion 13-43).
The Committee has also advised that a local justice must not permit a part-time court clerk to maintain part-time employment as a secretary in the county Public Defender’s private law office, where the Public Defender or his/her assistants appear in the judge’s court “on a continual basis” (Opinion 97-107; see also Opinion 07-142). Applying the same reasoning, the Committee concluded that a local justice must not permit the court clerk to work full-time as a secretary in the District Attorney’s office (see Opinion 07-85).
Here, too, the court clerk’s close ongoing working relationship with the local prosecutor who regularly appears in the court would create an appearance of alignment with prosecutorial and/or law enforcement interests and erode public confidence in the judiciary’s impartiality (see Opinions 07-85; 13-43; 10-154; 01-43). This is particularly true where, as here, the outside employment directly focuses on cases pending in the judge’s court and involves performing functions the court itself may not undertake in those cases (see Opinion 15-197[B]). Thus, the Committee concludes a town or village justice may not permit a part-time court clerk to accept outside employment as assistant to the local prosecutor that regularly appears in his/her court, even if the role is strictly clerical.