Opinion: 01-43

April 19, 2001

Digest:  A village justice should not hire as clerk of the village court the person who is simultaneously holding the position of clerk to the village police department.

Rule:  22 NYCRR 100.2(A);
           Opinions 96-94 (Vol. XIV); 91-49 (Vol. VIII).


            A village justice inquires as to whether the justice may hire an individual as court clerk who is presently holding a position as clerk in the Village Police Department.

            This Committee has previously stated that a police department dispatcher should not serve as a village court clerk, Opinion 98-59 (Vol. XVII). In that opinion, the Committee cited Opinion 96-64 (Vol. XIV) in which the Committee advised against employing the town constable as court clerk. The Committee said therein, ". . . the dual employment position . . . would be inappropriate and would cause the judges' impartiality to be reasonably questioned."

            The Committee thus concludes that to allow the police department clerk to serve as court clerk would erode "public confidence in the integrity and impartiality of the judiciary" in contravention of section 100.2(A) of the Rules Governing Judicial Conduct. This is not to say that a court employee may never serve in any civilian capacity in a police department (see, e.g., Opinion 91-149 [Vol. VIII]). It does mean that where the nature of the work involves the employee in ongoing police activity there is a fundamental incompatibility between the two positions. Accordingly, the Committee is of the opinion that the inquirer should not hire the police clerk as a court clerk.