Opinion 03-44

March 6, 2003

Digest:         A deputy elections commissioner who is legally permitted to serve as a town justice, may serve in such office provided that his or her employment does not prevent adherence to the Rules Governing Judicial Conduct.

Rule:            Election Law § 3-200(4); 22 NYCRR Part 100; 100.3(A); 100.5(A)(1)(a)- (i).

Opinion:

         The inquirer is a county deputy commissioner of elections who wishes to run for the position of town justice. An opinion is requested as to the compatibility of the two offices. In making the request the inquirer points out that Election Law §3-200(4) specifically provides that it is permissible for a commissioner of elections simultaneously to serve as a town justice. Further, based upon an opinion of the State Comptroller which held that employees of the Board of Elections could serve as town justices, Special Counsel to the Board of Elections issued an opinion stating that a deputy elections commissioner may simultaneously hold the office of town justice.

         Accordingly, it appears that there is no legal bar to the inquirer serving as a town justice. Nevertheless, we are compelled to point out that the absence of a legal barrier does not in any way detract from the obligation to adhere to the various constraints imposed by the Rules Governing Judicial Conduct. 22 NYCRR Part 100. Thus, if the position held by the inquirer amounts to a political party designation, activities usually associated with a political position would be forbidden should the inquirer become a judge. This would mean that the deputy commissioner could not be a member of a political club or organization; hold office in a political organization; engage in partisan political activity; endorse or oppose publicly any other candidate for political office; attend political gatherings; or contribute to a political organization or candidate, 22 NYCRR 100.5(A)(1)(a) - (i).

         In short, as stated in section 100.3(A) of the Rules, “(t)he judicial duties of a judge take precedence over all the judge’s other activities.” 22 NYCRR 100.3(A). This includes his or her extra-judicial employment. We thus conclude that the inquirer is not barred from serving as a town justice, provided that his or her employment does not prevent adherence to the Rules Governing Judicial Conduct.