September 14, 1999
NOTE: This opinion has been modified to the extent inconsistent with Opinion 16-162. See footnote 2 of Opinion 16-162 for details.
NOTE: The Chief Judge’s rules concerning dual employment and political activities of nonjudicial court employees now appear at 22 NYCRR 50.3 and 50.5, respectively. For guidance on Part 50 (formerly Part 25), court personnel may consult the Office of Court Administration’s Nonjudicial Ethics Helpline (888-283-8442).
Digest: Under the circumstances described, a County Court law clerk may serve as town justice in a town within the county.
Rule: 22 NYCRR 25.37; 25.39; 100.5; 100.5(C); 100.6(A); Opinion 99-126.
A County Court judge inquires whether the judge's full-time law clerk may run for the position of town justice in a town within the same county as the County Court.
The Rules Governing Judicial Conduct require the County Judge to prohibit the law clerk who is the judge's personal appointee from engaging in certain political activity. 22 NYCRR 100.5(C). However, these same Rules and the Rules of the Chief Judge do not prohibit a law clerk from seeking to become a judge or engaging in any activity permissible for a candidate for elective judicial office. 22 NYCRR 25.39; 100.5; 100.6(A). Therefore, as long as the law clerk, as a candidate for judicial office, complies with the requirements of the Rules, he or she may seek the office of town justice.
In this particular instance, there is the additional question of the compatibility of the two offices should the law clerk succeed in becoming the town justice. The County Court does serve as the appellate court for matters originating in the Town Court. There is, however, more than one County Court Judge serving in the county and historically there is a very small case load in the town in question and therefore very few appeals from the Town Court. The inquiring judge states that effective steps can be taken to ensure that the law clerk would have no contact with appeals from that Town Court. (In a related situation, this Committee opined that it was permissible for a part-time Town Justice to serve as a part-time Court Attorney in the Family Court even though some proceedings may involve both the Town Court and the Family Court. Opinion 99-126.)
In this specific circumstance, assuming that the other County Judge or judges will handle the very few expected appeals from the Town Court and that the law clerk be will be insulated from any involvement with those appeals the Committee believes that there is no incompatibility of office.
The law clerk, however, pursuant to the provisions governing dual employment in the court service, must still seek and receive the prior consent of the Chief Administrator of the Courts for such dual service in the court system. 22 NYCRR 25.37. Opinion 99-126.