Judges: JAMES D. COLE, Assistant Attorney General
Filed Date: 10/23/1997
Status: Precedential
Modified Date: 7/5/2016
David D. Scaglione, Esq. Informal Opinion Town Attorney No. 97-48 Town of Lewis P. O. Box 309 Willsboro, N Y 12996
Dear Mr. Scaglione:
You have inquired whether an individual must be a citizen of the United States in order to qualify for holding the position of town court clerk. You have explained that the person currently occupying the position of court clerk is a Canadian citizen who has been married to a United States citizen for 18 years. She has been living in your town during that period of time.
You have listed the functions of her position as typing letters, photocopying, posting mail, sending out collected fines and receipts, data entry into the court docket and preparing bank deposits. Further, you have indicated that the clerk has taken the civil service examination and has been classified as an ordinary clerk. This classification occurred in 1989 and her functions, as described above, have remained the same since that time. You have suggested that the answer to your question may hinge on whether the town court clerk qualifies as a public officer.
Under section
The characteristics of a public office as compared to a position of employment have been defined. A determination as to whether an appointee is an officer rather than an employee requires a judgment whether the powers, duties, qualifications and other characteristics of the job make him or her an officer rather than an employee. The distinction between a public office and public employment is not always clear. Matter of Dawsonv. Knox,
In a prior opinion, we compared a public office to a position of employment.
"Office" implies the obligation of a portion of the sovereign powers to, and the possession of it by, the person filling the office; and the exercise of such powers within legal limits constitutes the correct discharge of the duties of such office. The employee does not discharge independent duties but acts by the direction of others. The word "employee", used in a public sense, does not signify an agent or one vested with discretion as to the mode of performing his duties. Where the relation is one of master and servant we have the "employee", but the words "public officer" suggest the relation of principal and agent.
1911 Op Atty Gen 452, 454.
Therefore, it is clear that while there are several characteristics of status as a public officer, a person may not qualify as a public officer unless he or she exercises a portion of the sovereign powers of government. Unlike an employee who does not discharge independent duties but acts by the direction of others, a public officer has discretion as to how he or she performs his or her duties.
The establishment of the position of justice court clerk of a town justice court is entirely in the discretion of the governing body, the town board. Uniform Justice Court Act §
Applying the standards for determining public officer status, we conclude that your town justice court clerk is not a public officer, and thus not subject to the citizenship requirement of Public Officers Law §
We note that section
Further, a requirement that the town justice court clerk be a citizen of the United States would be inconsistent with established law protecting the rights of legal aliens. See, Cabell v. Chavez-Salido,
We conclude that the clerk of a town justice court is not a public officer and, therefore, is not required to be a citizen of the United States.
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,
JAMES D. COLE
Assistant Attorney General
In Charge of Opinions
Matter of MacDonald v. . Ordway , 219 N.Y. 328 ( 1916 )
MacRum v. Hawkins , 261 N.Y. 193 ( 1933 )
Lake v. Binghamton Housing Authority , 130 A.D.2d 913 ( 1987 )
Haller v. Carlson , 42 A.D.2d 829 ( 1973 )
County of Suffolk v. State , 138 A.D.2d 815 ( 1988 )