Opinion 10-154

October 28, 2010

Please Note: In April 2014, the Assistant Solicitor General  in Charge of Opinions concluded that “The positions of village clerk/treasurer and village court clerk are incompatible.” See  https://ag.ny.gov/sites/default/files/opinion/2014-1_pw.pdf for more details.  (While we cannot comment on the legal effect of 2014 Ops Atty Gen No. 2014-1, its reasoning appears to focus on the roles of village treasurer or deputy treasurer.)

Digest:         A village justice may permit the village court clerk to also serve as a clerk for the same village where the judge presides, but may not permit the village court clerk to also serve as receptionist/clerk for the village police department that serves the same village where the judge presides. Unless otherwise prohibited by law, the village justice may have the Village Clerk assist the village court clerk in verifying court bank deposits.

Rules:          Uniform Justice Court Act §2021(1); Village Law §4-410(1)(b); 22 NYCRR 100.1; 100.2; 100.3[C] [2]; Opinions 07-196; 98-59 (Vol. XVII); 96-64 (Vol. XIV); 1983 Ops St Comp No. 83-174; 1979 Ops St Comp No. 79-285.

Opinion:

         A village justice asks whether he/she may permit the village justice court clerk to also work as a clerk for the same village where the judge presides and as a receptionist/clerk for the village police department. The judge also asks whether he/she may have the Village Clerk assist the court clerk by serving as “the second pair of eyes on the count of mon[ies] when a deposit is made.”

         A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1) and avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2). Also, “[a] judge must 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][2]; see also Opinions 98-59 [Vol. XVII]; 96-64 [Vol XIV]).

         In Opinion 98-59 (Vol. XVII), the Committee advised that a village justice should not consent to the village mayor’s appointment of a dispatcher in the village police department to also serve as clerk of the village court. Therefore, the inquiring judge should not permit the clerk of the court where the judge presides to also work as a receptionist/clerk for the village police department.

         However, the inquiring judge may permit the clerk of the court where the judge presides to also work as a clerk for the same municipality (see Opinion 07-196 [in the absence of any legal incompatibility in the positions, a town justice may allow a full-time bookkeeper, office manager and receptionist for the town to also serve as town court clerk]).

         With respect to involving the Village Clerk in the verification of court bank deposits, a Village Justice must pay all costs, fees and expenses, and all fines or other money paid to him/her during any calendar month to the state comptroller within the first ten days of the month following collection, and this money remains the property of the village (see Uniform Justice Court Act §2021[1]; Village Law §4-410[1][b]). And, a Village Justice is personally liable for such monies (see 1983 Ops St Comp No. 83-174; 1979 Ops St Comp No. 79-285). Therefore, unless it is otherwise prohibited by law, it is within the judge’s discretion to have the Village Clerk help to verify court bank deposits.