Can a New York village court clerk also work as a state probation officer in the same area, or would the two roles conflict?

Plain-English summary

The Village of Tannersville's court clerk wanted to take an additional job with the New York State Probation Department as a probation officer working with probationers in the area. The village attorney asked whether that was allowed, and separately whether the clerk had to maintain daily office hours.

On the dual-office question, the AG applied the New York compatibility test from People ex rel. Ryan v Green. No statute expressly prohibited the combination. But the AG had repeatedly concluded that the probation officer role is incompatible with positions whose connection raises an appearance-of-impropriety problem affecting the probation officer's objectivity.

The body of prior AG opinions made the pattern clear. Op Atty Gen (Inf) No. 91-61 held probation officer and police officer incompatible because a probation officer must make impartial reports to the sentencing court, a function compromised by simultaneous police work. Op Atty Gen (Inf) No. 89-27 held that a probation officer cannot be employed by a district attorney as coroner, because the probation officer should serve as a disinterested third party preparing objective court reports. A prior opinion concluded that a county probation department secretary could not also serve as a town justice because their regular interaction with the judicial branch raised mutual-criticism problems.

The village court clerk situation falls on the same line. The clerk is employed and supervised by the village justice. A probation officer who is also under the justice's supervision in a different role could have their objectivity influenced when preparing reports to that village court or other courts. Even apart from actual bias, the potential for conflict creates an appearance of impropriety undermining public confidence in government. The AG concluded the village court clerk may not also serve as a probation officer.

The opinion also addressed clerk office hours briefly. The Uniform Justice Court Act does not prescribe specific office hours for court clerks. UJCA § 2019-a requires the court's criminal records and dockets to be open to public inspection at reasonable times. UJCA § 1802 requires the small claims part to sit at least one evening per month unless the Chief Administrator grants an exemption. 22 NYCRR § 214.2(b) (Uniform Civil Rules for the justice courts) requires each court to establish days and times when in session and post that schedule; the clerk's office is "open at hours established by each court," subject to the Chief Administrator's further order.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why is the "appearance of impropriety" enough to bar the combination?

Probation officers prepare reports the sentencing court relies on for substantive decisions. If a probation officer is also a court clerk supervised by the same judiciary, an observer can reasonably wonder whether the officer's reports are softened, hardened, or otherwise shaped by their supervisor relationship. New York treats that as undermining public confidence in government even where actual bias is not proven. The remedy is to keep the offices separate.

Could the clerk be a probation officer in a different geographic area?

The opinion does not directly address that scenario. The AG focuses on the conceptual incompatibility, not the geographic scope. A probation officer working in a different area would still have reports going to courts somewhere, and the dual-employment by the judiciary and the executive branch is what raises the issue. Anyone considering that arrangement should consult separately with the State Office of Probation and Correctional Alternatives and the relevant courts.

What about a court clerk who has resigned and is taking on probation work later?

Sequential, not simultaneous, employment does not trigger compatibility analysis at all. The compatibility test only applies to holding both at once. The opinion does not impose a cooling-off period.

Are there other roles the AG has held incompatible with probation officer?

Yes. Op Atty Gen (Inf) No. 91-61 (police officer); Op Atty Gen (Inf) No. 89-27 (probation officer cannot work for the district attorney as coroner); and a prior opinion the AG cited that held probation department secretary and town justice incompatible. The common thread is that the probation officer's required objectivity is at risk whenever the other position involves close working contact with the judiciary, prosecution, or law enforcement.

What office hours does the village court clerk have to keep?

The Uniform Justice Court Act does not set specific hours. The court sets its own days and times for being in session, and the clerk's office is open at hours the court establishes (22 NYCRR § 214.2(b)). The criminal records and dockets must be available for public inspection at reasonable times (UJCA § 2019-a).

Background and statutory framework

People ex rel. Ryan v Green, 58 NY 295 (1874), is the leading New York case on compatibility of offices. Offices are incompatible if one is subordinate to the other or if their duties are inherently inconsistent. The compatibility analysis applies equally to offices, positions of employment, and combinations thereof.

The AG's prior opinions have consistently held the probation officer role incompatible with positions involving close ties to the judiciary, prosecution, or law enforcement, because the probation officer's required objectivity is structural and important.

Uniform Justice Court Act § 2019-a requires the court's criminal records and dockets to be open to public inspection at reasonable times. UJCA § 1802 sets a minimum sitting for the small claims part. 22 NYCRR § 214.2(b) governs court session times and clerk's office hours under the Uniform Civil Rules for the justice courts.

Citations

• People ex rel. Ryan v Green, 58 NY 295 (1874) (compatibility-of-office test).
• Op Atty Gen (Inf) No. 91-61 (probation officer and police officer incompatible).
• Op Atty Gen (Inf) No. 89-27 (probation officer and DA's coroner incompatible).
• Uniform Justice Court Act §§ 1802, 2019-a; 22 NYCRR § 214.2(b) (court clerk hours and operations).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-14_pw.pdf

Original opinion text

UNIFORM JUSTICE COURT ACT §§ 1802, 2019-a; 22 NYCRR § 214.2(b).
The village court clerk may not also serve as a probation
officer.
March 10, 1997

David Rabin, Esq.
Village Attorney
Village of Tannersville
120 Lafayette Street, 2nd Floor
New York, NY 10013-3129

Informal Opinion
No. 97-14

Dear Mr. Rabin:
You have asked whether the village court clerk may accept
employment with the New York State Probation Department as a
probation officer when her duties will require her to work with
probationers in the vicinity of the village. You have also
inquired whether the village court clerk must have daily regular
office hours during which he or she is available for inquiries
regarding court matters.
With regard to your first inquiry, we are aware of no
constitutional or statutory provision that bars one person from
serving as village court clerk and a probation officer. In the
absence of a constitutional or statutory prohibition against
dual-officeholding, one person may hold two offices
simultaneously unless they are incompatible. The leading case on
compatibility of office is People ex rel. Ryan v Green, 58 NY 295
(1874). In that case the Court held that two offices are
incompatible if one is subordinate to the other or if there is an
inherent inconsistency between the two offices. The former can
be characterized as "you cannot be your own boss", a status
readily identifiable. The latter is not easily characterized,
for one must analyze the duties of the two offices to ascertain
whether there is an inconsistency. An obvious example is the
inconsistency of holding both the office of auditor and the
office of director of finance.
There are two subsidiary aspects of compatibility. One is
that the principle equally covers an office and a position of
employment or two positions of employment. Also, where positions
are compatible, a conflict of interests may arise out of the
simultaneous holding of the positions. The conflict can be
avoided by declining to participate in the disposition of the
particular matter.
In several prior opinions, we concluded that the office of
probation officer is not compatible with positions where the
potential for conflict creates an appearance of impropriety. In

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Op Atty Gen (Inf) No. 91-61, we concluded that the offices of
probation officer and police officer are incompatible. We noted
that the probation officer has a duty to make impartial reports
to assist the sentencing court and that this function could be
compromised if the officer also served as a police officer. In
Op Atty Gen (Inf) No. 89-27, we concluded that a probation
officer may not be employed by the district attorney to perform
the duties of coroner. Again, we noted that a probation officer
should serve as a disinterested third party in preparing
objective reports for the court. A link between the probation
officer and the district attorney raised a potential conflict
that, in our view, created the appearance of impropriety.
Accordingly, we found the positions incompatible.
Similarly, in a prior opinion we concluded that one person
could not simultaneously serve as a secretary in a county
probation department and as a town justice because the positions
are incompatible. There we noted that the duties of the two
positions could conflict because the probation department
regularly reports to the court on the progress of probationers
and has regular contact with the judicial branch. We reasoned
that the potential for such reports to include criticism of
particular justices, or for particular justices to be critical of
probation officials made the positions incompatible.
While none of these prior opinions covers the precise
question you ask, in our view the same rationale applies to the
situation you present. The objectivity required of a probation
officer could be adversely affected by the officer's employment
as village court clerk. The village court clerk is employed and
supervised by the village justice. This link could adversely
affect the objectivity of reports submitted by the probation
officer to the village court or other courts. In any event, the
potential for conflict creates an appearance of impropriety which
undermines public confidence in the integrity of government.
As to your second inquiry regarding the office hours of the
village court clerk, the Uniform Justice Court Act does not
prescribe specific hours of operation for the court clerks'
offices. It does provide, however, that in criminal matters the
records and dockets of the court must be open to public
inspection at reasonable times. Uniform Justice Court Act
§ 2019-a. The Act also requires the small claims part of the
court to be open at least one evening per month unless the Chief
Administrator of the Courts grants an exemption. Id., § 1802.
The Uniform Civil Rules for the justice courts regulate the
places and hours for holding court. The Rules state that each
court shall establish the days and times when it shall be in
session, subject to modification by the Chief Administrator, and
provide for publication of the schedule. 22 NYCRR § 214.2(b).
The same rule provides that the clerk's office "shall be open at

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hours established by each court, subject to the further order of
the Chief Administrator".
We conclude that the village court clerk may not also serve
as a probation officer.
The Attorney General renders formal opinions only to
officers and departments of State government. This perforce is
an informal and unofficial expression of the views of this
office.
Very truly yours,

SIOBHAN S. CRARY
Assistant Attorney General