Opn. No. ( 1994 )

Requestor: Bruce D. Wilson, Esq., Ulysses Town Board Suite 305, Clinton House 103 West Seneca Street Ithaca, N Y 14850

Written by: James D. Cole, Assistant Attorney General in Charge of Opinions

You have asked several questions concerning the provision of clerical services to town justices.

The town board has discretion to establish non-judicial positions for the town court. Uniform Justice Court Act § 109. The clerk or clerks of a town court may be employed and discharged from employment only upon the advice and consent of the town justice or justices. Town Law §20(1)(a). The role of the clerk is to provide clerical assistance to the justices of the court. 1974 Op Atty Gen (Inf) 307. The clerk has no independent function but performs non-judicial duties delegated by the justice.

First, you ask whether one person may hold both the office of town justice and clerk to that justice.

In our view, the position of clerk is subordinate to the office of town justice, rendering those two positions incompatible. People ex rel. Ryanv Green, 58 N.Y. 295 (1874). The appointment and discharge of the clerk is subject to approval of the justice and the clerk performs duties delegated by the justice.

Second, you ask whether the position of clerk may be eliminated resulting in the town justice performing his or her own clerical duties. There is no requirement that the position of clerk be established. Establishment of non-judicial positions is in the discretion of the town board. Uniform Justice Court Act § 109. State law recognizes that where a court has no clerk, the justice of the court performs clerical duties. Id., § 2101(f). Thus, the town board could decide not to establish the position of clerk or could abolish the clerk position, permitting the justice to perform his or her own clerical work. Any increase in salary of the justice during his term of office in recognition of these extra duties, that is authorized by local law, would be subject to referendum on petition under section 24(2)(h) of the Municipal Home Rule Law.

Finally, you ask, where a town has two justices with one justice performing his or her own clerical services, whether that individual may serve as the clerk to the other justice. We recommend against this arrangement. The Office of Court Administration (OCA) believes that this will cause great confusion as to whether a document is being signed by this person as a justice or as a clerk. OCA believes the confusion will affect lawyers, litigants and others.

We conclude that a town justice may act as his or her own clerk.

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.