Opinion 05-50

June 9, 2005

Digest:         A town justice should not simultaneously serve as Deputy Commissioner of Public Safety for a municipality adjoining the town in which the justice serves, as the duties of that office involve various law enforcement functions.

Rules:          CPL 2.15; Town Law 31(4); UJCA 105(C); 22 NYCRR 100.4(C)(2)(b); 100.6(B)(4). Opinions 90-188 (Vol. VI); 95-68 (Vol. XIII); 96-39 (Vol. XIV); 98-116 (Vol. XVII); 03-95; 03-97.

Opinion:

         A city adjoining the town in which the inquiring justice serves, has offered the town justice employment as Deputy Commissioner of Public Safety. As Deputy Commissioner, the judge would assist the Commissioner in budget and policy making issues regarding the city fire department, police department, animal control office, bureau of vital statistics, code enforcement and building inspections. The judge inquires whether simultaneously serving in both positions would be ethically proper.

         The Rules Governing Judicial Conduct do allow part-time judges to accept private employment or public employment in a federal, state or 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).

         As the Deputy Commissioner does not have peace officer status, holding that position would not expressly violate the rules or statutes prohibiting a part-time judge from employment as a police or peace officer. CPL 2.15; Town Law 31(4); UJCA 105(c); 22 NYCRR 100.4(C)(2)(b).

         However, in applying these provisions, this Committee has previously concluded that certain employment, including offices that do not have peace officer status, are incompatible with judicial office in that simultaneously holding both positions would create an appearance of impropriety in light of the non-judicial employment’s apparent connection with law enforcement functions. Specifically, the Committee has determined that it would be inappropriate for a part-time judge to serve simultaneously as an assistant district attorney in an adjoining county; as an employee of the county probation department; as a dispatcher for the county Sheriff’s Department; as the town code enforcement officer; as a private consultant for the New York State Police; or as a Special Deputy U.S. Marshal. Opinions 90-188 (Vol. VI); 95-68 (Vol. XIII); 96-39 (Vol. XIV); 98-116 (Vol. XVII); 03-95; 03-97.

         Here, although the Deputy Commissioner position does not have peace officer status, it is our view that serving in both capacities simultaneously would be improper because the responsibilities of that office appear as inextricably intertwined with the supervision and implementation of various law enforcement functions. Opinion 03-97. Accordingly, we advise the judge not to accept the position in question.