Opinion: 98-113
October 22, 1998
Digest:    A town justice may not serve as deputy court clerk in the same town court which has a co-justice, but may retain a part-time position as assistant to the town assessor.

Rule:    22 NYCRR 100.2(A); 100.6(B)(4); 100.3(E);
            Opinion 88-67 (Vol. II); 1994 N.Y.
            Op. Atty. Gen (Inf.) #94-29; 1974 N.Y.
            Opp. Atty. Gen. 307.


            A full-time deputy town clerk who works half-day as a court clerk for two town justices and the other half-day as the assistant to the town assessor is interested in the Town Justice position and asks if it is permissible to hold the positions of justice and court clerk and to collect salaries as justice, court clerk and assistant to the town assessor.

            Section 100.6(B)(4) of the Rules Governing Judicial Conduct states that "a part-time judge may accept private employment or public employment in a federal, state or municipal department or agency, provided that such employment is not incompatible with judicial office and does not interfere with the prior performance of the judge's duties."

            While the deputy court clerk's position may be includable within the parameters of permissible public employment provided for in section 100.6(B)(4), the issue remains of whether holding the positions within the same jurisdiction would create a conflict or the appearance of an impropriety in violation of section 100.2(A) of the Rules.

            Section 100.2(A) of the Rules mandates that a judge "shall conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." This Committee has allowed dual employment in courts within the same county, but only in courts of different jurisdictions. In Opinion 88-67 (Vol. II), the Committee advised that a town justice may also serve as part-time law clerk to a Family Court Judge in the same county. But, the issue here involves employment within the same jurisdiction as justice, part-time court clerk to the other justice and assistant to the assessor. The justice of a town court might not be perceived as impartial if he or she is also a court clerk for another judge of the same court, handling cases that could potentially come before him or her. At a minimum, serving as judge and court clerk within the same court has the appearance of a conflict and would therefore violate section 100.2(A). See also 1974 N.Y. Op. Atty. Gen. 307.

            Notwithstanding the foregoing, the Committee is mindful of a 1994 N.Y. Op. Atty. Gen. (Inf) #94-29 which replied to a similar request with a response that "a town justice may act as his or her own clerk." That opinion appears to permit that activity where the clerk's position is abolished and the justice serves as his or her own clerk. But that opinion does not appear to apply to an individual justice serving as clerk to a second justice of the same town court.

            As to the position of part-time assistant to the assessor within the same municipality, it appears that such activity covers subject matter unlikely to come before a justice and would not present an appearance of impropriety. Accordingly, a part-time town justice may also serve as an assistant to the assessor provided there is recusal in any case which involves an appearance of impropriety arising out of the holding of the two positions. 22 NYCRR 100.3(E).