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, 58 NY 295 (1874). 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 impartial reports for courts. The opinion says a clerk's employment and supervision by the village justice could adversely affect the objectivity of reports submitted to the village court or other courts. It concludes that the potential conflict creates an appearance of impropriety undermining public confidence in government.

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

The request concerned probation work with people in the village's vicinity. The opinion does not decide a different geographic arrangement. Its reasoning focuses on the village justice's supervision of the clerk and the possible effect on probation reports to the village court or other courts.

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

The opinion addresses simultaneous service as village court clerk and probation officer. It does not address a former clerk taking a probation job after leaving the clerk position.

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

Yes. The opinion cites prior conclusions about probation officer and police officer, probation officer and district attorney's coroner, and probation department secretary and town justice. It explains the potential conflict in each pairing and applies similar reasoning to the village court clerk.

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 cites prior opinions finding particular pairings incompatible where a potential conflict would create an appearance of impropriety. In this request, the concern was the justice's supervision of the clerk and its possible effect on the clerk's probation reports.

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