Opinion: 03-79

September 4, 2003

Digest:         A full-time judge should not serve as Commissioner of a volunteer fire department.

Rules:          Town Law §174; 22 NYCRR 100.4(A)(3); 100.4(C)(2)(a); 100.4(F). Opinions 89-147, (Vol. IV); 90-5, (Vol. V); 92-123, (Vol. X); 95-102 (Vol. XIII); 96-76, (Vol. XIV).

Opinion:

         A full-time Court of Claims judge sitting as an Acting Supreme Court Justice, inquires as to whether he/she may continue to serve as Fire Commissioner of a volunteer fire department. The judge advises that the judge has been a member of the volunteer department since 1959 and was elected (by members of the department, not community residents) as a Fire Commissioner in September 2000.

         The judge advises that the commissioners meet monthly and “administer the affairs of the department including budget matters, requests for equipment, training and personnel”. In addition, the Commissioners sit as “an administrative body to review infractions and fire fighter misconduct”. The judge is not involved in fund-raising of any kind.

         While this Committee has previously stated that a part-time judge could serve as a director of a volunteer fire company [Opinion 89-147, (Vol. IV)] and as a treasurer of a fire district [Opinions 90-5, (Vol. V); 95-102, (Vol. XIII)], that is because part-time judges are expressly exempted from the prohibitions set forth in section 100.4(C)(2)(a) of the Rules Governing Judicial Conduct. 22 NYCRR 100.6(B)(1). That prohibition expressly bars full-time judges from serving on a “governmental committee or commission or other governmental position that is concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice.” Further, as a full-time judge, the inquirer should not be serving in what appears to be another judicial capacity. 22 NYCRR 100.4(F); Opinions 96-76, (Vol. ); 92-123, (Vol. X).

         While the judge has advised that the fire department is not in a fire district (which is a political subdivision of the state) such service as a commissioner in this department is virtually identical in terms of duties and responsibilities. Town Law §174.

         In sum, given the judge’s description of a commissioner’s duties and responsibilities, it is the Committee’s view that the judge would be best served by not serving as a Commissioner of the Fire Department. The two positions are, in our opinion, incompatible. 22 NYCRR 100.4(A)(3).