Opinion 04-118

October 28, 2004

Digest:         The position of court clerk should not be filled by someone who is engaged in activities involving the training of police officers who will be appearing as witnesses in that court.

Rule:            22 NYCRR 100.2(C); 97-107 (Vol. XVI); 96-64 (Vol. XIV).

Opinion:

         A village justice wishes to fill a vacancy for the position of court clerk. The candidate the justice has in mind, though qualified, has certain affiliations with law enforcement agencies. The court has an active traffic enforcement calendar, and the judge inquires as to the propriety of this candidate being hired as court clerk, where the duties of that position include processing cases brought into the court by the local police.

         The judge states that the candidate helps out her father in a photography business which “does a great deal of forensic photograph for local public agencies” but deals mainly with the county sheriff’s department. The candidate also serves as the “secretary” for a police academy and attends training exercises and even participates in a “role playing” capacity. This academy is sponsored by the local village police department and supplies the new recruits who as officers will enforce traffic violations in the judge’s court.

         Section 100.2(C) of the Rules Governing Judicial Conduct provides, in part, that a judge shall not permit “others to convey the impression that they are in a special position to influence the judge.” 22 NYCRR 100.2(C).

         Thus, this Committee has opined that a town justice may not allow the court’s part-time clerk to maintain part-time employment in the public defender’s private office even though in that position he/she will be handling non-defender business. Opinion 97-107 (Vol. XVI). Further, this Committee has stated “. . . where the extra judicial office . . . is one directly maintained in the enforcement of local law and where the court in which the clerk is employed has jurisdiction in this area - - dual employment would be inappropriate and would cause the judge’s impartiality to be questioned. Opinion 96-64 (Vol. XIV).

         Though the candidate’s aid in helping out her father in the photography business may not, itself, preclude her employment as court clerk, we are of the opinion that her connection with and active participation in the training of the very police officers who will come into the court could readily cause the court’s impartiality to be questioned. Absent the candidate’s disassociation from the police academy, it is our opinion that the applicant should not be employed as court clerk.