Opinion 03-97

October 23, 2003

Digest:         A town justice may not accept employment as the town code enforcement officer.

Rules:          CPL 2.15; Town Law 31(5); UJCA 105(C); 22 NYCRR 100.1; 100.2; 100.6(B)(4); Opinion 96-39 (Vol. XIV)

Opinion:

         A town justice has been offered the opportunity to interview for the position of town code enforcement officer. The justice inquires if it would be permissible to serve in both positions simultaneously.

         The Rules Governing Judicial Conduct allow a part-time judge to accept private employment or public employment in a federal, state or municipal agency provided that such employment is not incompatible with judicial office. 22 NYCRR 100.6(B)(4). We conclude that, in this instance, the two positions are incompatible.

         Although a town code enforcement officer does not appear to have peace officer or police officer status, and therefore holding such a position would not expressly violate the rules which prohibit a part-time judge from being employed as a police or peace officer [CPL 2.15; 2.20; Town Law 31(5); UJCA 105(C); 22 NYCRR 100.4(C)(2)(b)], this Committee, nonetheless, believes that serving in both capacities simultaneously would be improper. It is clear to us that service as a town code enforcement officer is the functional equivalent of a peace officer because it includes the responsibility to determine whether to charge individuals formally with code violations; the responsibility to file accusatory instruments in his/her own court; and, if necessary, to testify as a witness in the same court. Beyond that, if no assistant district attorney or town attorney is assigned to prosecute the town’s code violation claims, the justice, as code enforcement officer, would be obligated to serve as prosecutor in his/her own court.

         Clearly, operating in these two capacities would be inappropriate. It would violate the justice’s obligation to maintain judicial independence and to avoid impropriety and the appearance of impropriety. Indeed, it is fundamental that a sitting justice may not also serve as an accuser, a witness, and a prosecutor in the justice’s own court, even though a co-justice of that court could preside over the matter. 22 NYCRR 100.1; 100.2.

         We also note that the Committee has previously said that a town justice may not accept or engage in employment as a “Special Deputy U.S. Marshal” for an independent contractor who provides security services to the federal courts, because the duties of the latter position are very similar to those of a police or peace officer. Opinion 96-39 (Vol. XIV). The responsibilities of a town code enforcement officer are likewise similar to the duties of municipal police and peace officers, and the justice’s acceptance of such a position is also in our opinion, prohibited. Accordingly, a town justice may not accept or engage in employment as a municipal code enforcement officer for the town.