September 21, 1995
NOTE: This opinion has been modified to the extent inconsistent with Opinion 16-162. See footnote 2 of Opinion 16-162 for details.
Note: Former section 100.5(h) has been superseded by 22 NYCRR 100.6(B)(4). The Chief Judge’s rules concerning dual employment of nonjudicial court employees now appear at 22 NYCRR 50.3. 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: A part-time town justice may serve in a dual capacity, as a legal secretary to a county court judge, in the same county, provided that appeals from decisions of the part-time town justice should, if practicable, be referred to a different County Court judge. But, the part-time town justice should not participate as legal secretary in any manner, in the appeals from decisions of the part-time town justice. Further, the part-time justice must obtain prior written consent from his/her appointing authority and the approval of the Chief Administrative Judge of the Courts before assuming the additional position.
Rules: 22 NYCRR 25.37; 100.5(h)
A part-time town justice inquires whether the justice may serve as a legal secretary to a County Court judge, in the same county.
In Opinion 88-67, Vol II, and 92-115, Vol. X, this Committee held that there is no constitutional or statutory prohibition against a town justice simultaneously holding the position of law clerk to a judge of another court. Section 100.5(h) of the Rules of the Chief Administrator of the Courts addresses the issue of employment of part-time judges as follows:
A part-time judge may accept private employment or public employment in a Federal, State, or municipal department or agency, provided that such employment is not incompatible with the judicial office and does not conflict or interfere with the proper performance of the judge's duties.
It is the view of the Committee that the part-time justice's work as a legal secretary is not incompatible with the proper performance of judicial duties. However, the part-time justice should not participate as legal secretary, in any manner, in the appeals from decisions of the part-time town justice. Further, if practicable, such matters should be referred to a different County Court judge.
However, Section 25.37 of the Rules of the Chief Judge prohibits dual employment of court employees without the previous consent in writing of the appointing authority and the Chief Administrative Judge of the Courts. Accordingly, the part-time town justice should obtain the appropriate approval before assuming the additional position.
See this Committee's Opinions 88-67, (Vol. II; 88-69 Vol. II, and 92-115 Vol. X).