Digest:  A part-time village judge should not serve as a hearing officer in an employee disciplinary proceeding involving a town and one of its employees where there is a criminal proceeding against the employee pending in the judge's court.
 

Rule:  22 NYCRR 100.2; 100.4(A)(3); 100.6(B)(4);
           Opinions 98-41 (Vol. XVI); 97-53 (Vol. XV).
 
 

Opinion:

            A part-time acting village judge has been asked by a Town Board to serve as the hearing officer in a "disciplinary hearing regarding an employee who it is claimed took some money from the Town Hall." Criminal charges of petit larceny, having been brought against the employee, are pending in the judge's court. The judge notes that he/she does not "handle the criminal calendar [and] will not be involved with this criminal prosecution . . . ." The judge seeks the Committee's opinion as to the propriety of serving as hearing officer in this particular instance.

            Under section 100.6(B)(4) of the Rules Governing Judicial Conduct a part-time judge "may accept . . . public employment in a . . . municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge's duties." 22 NYCRR 100.6(B)(4).

            In Opinion 98-41 (Vol. XVI), the Committee had occasion to apply that provision in relation to a part-time town justice who had been asked to preside as arbitrator/hearing officer in a disciplinary hearing involving a village police officer of a village outside of the town in which the judge presides. The Committee, noting that it was a one-time assignment, concluded that there was no conflict with the judge's duties or an appearance of impropriety. Cited by the Committee was Opinion 97-53 (Vol. XV), in which the Committee reached the same conclusion with respect to a town judge serving on an arbitration panel in a dispute between the town and one of its employees.

            The instant inquiry requires a different result. The crucial difference is that there is a criminal proceeding pending in the judge's court and that proceeding involves the very same matters at issue in the disciplinary hearing. In our view, the pendency of the criminal proceeding, notwithstanding the judge's non-involvement, renders the judge's employment as hearing officer "incompatible with judicial office." 22 NYCRR 100.6(B)(4); also 22 NYCRR 100.4(A)(3). Service as a judge of the court in which the commission of crimes is being alleged bars the judge from serving in an essentially adjudicative capacity in a proceeding where the same conduct is in issue. Such dual service, in our opinion, could give rise to an appearance of impropriety. 22 NYCRR 100.2. Accordingly, the judge should not accept the assignment as hearing officer in this instance.