April 29, 2021
Digest: On these facts, a town justice in a town encompassing a village with its own court may not allow the town court clerk to simultaneously serve as clerk to the village police, where (a) the two courts share the same justices and courtroom and (b) the clerical staffs share the same telephone and service window, interact throughout the work day, and cover for each other.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(C)(2); Opinions 16-142; 13-43; 10-154; 10-20; 01-43; 99-159; 98-59; 97-111.
The inquirer is both a town justice and an associate village justice for a village within the town. The town and village courts share the same courtroom. The same individual serves as the inquiring justice’s co-judge in both the town court and the village court. Occasionally both courts have used the courtroom on the same day or evening. Each court has its own clerical staff, but their offices are adjacent. All the clerks share the same telephone and service window, “communicate continuously throughout the day,” and cover for each other.
The justice asks if the newly hired town court clerk may continue employment as a clerk for the village police department. The clerk’s responsibilities at the village police department include drafting accusatory instruments and other documents and reviewing files and evidence for submission to the village court. The village police appear regularly in the village court, but rarely appear in the town court.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge also must require court personnel subject to the judge’s direction or control to observe the standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C]).
We have advised that a town or village justice may not permit their court clerk or other clerical staff to be employed by the same police department that regularly appears in the court where the judge presides (see Opinions 13-43 [part-time assistant court clerk as assistant to the local police chief]; 10-154 [village court clerk as receptionist/clerk for village police department]; 01-43 [village court clerk as clerk for the village police department]; 98-59 [village court clerk as dispatcher in village police department]; 10-20 [town court’s part-time data entry person as part-time town constable]; cf. also generally Opinion 16-142 [part-time court clerk as assistant to the local prosecutor]).
Where the police department in question does not appear in the judge’s court, a different analysis may apply. Indeed, we have said a town justice may permit a part-time village police officer to serve as a town court clerk where the police work is infrequent and village cases do not come before the town court (see Opinion 99-159).
Significantly, we have also recognized that, in some circumstances, a town court and village court may be so intertwined that they should be treated as one for ethics purposes (see Opinion 97-111). As we explained (id.):
the fact that these two courts share the same court facility, office, office staff and court clerk obscures the fact that there are two distinct courts operating in the facility. The public, in general, and litigants, in particular, may be hard-pressed to distinguish where and when the activities and functions of one court end and the other begin. These courts are so united and interwoven that they appear to have lost their separate identity. To a significant degree, the judges of the two courts appear to be co-judges of the same court.
Here, too, because (a) the two courts share the same justices and courtroom and (b) the clerical staffs share the same telephone and service window, interact throughout the work day, and cover for each other, we believe the town and village courts are so united and interwoven that, to a significant degree, the court clerks of each court appear to serve as clerks of both courts.
In other words, given that the town court clerk will share the same telephone and service window with the village court clerical staff, “communicate continuously throughout the day” with them, cover for them, and even report to exactly the same judges, there would be an appearance of impropriety for the town court clerk to maintain outside employment as clerk to a village police department that regularly appears before the village court.
Accordingly, this town justice may not allow the town court clerk to simultaneously serve as clerk to the village police department (see Opinions 13-43; 10-154; 01-43).