Opinion 07-01

January 25, 2007

Digest:         Where a part-time town justice’s court calendar consists almost entirely of traffic cases and criminal complaints filed by New York State troopers, the judge should not accept employment as a secretary in the New York State Police Internal Affairs Bureau.

Rules:          22 NYCRR 100.6(B)(4); Opinions 03-118; 03-95; 91-149 (Vol. VIII).   

Opinion:

         A part-time town justice asks if it is ethically permissible to serve also as a secretary with the New York State Police Internal Affairs Bureau. The New York State Police write the majority of traffic tickets and criminal complaints filed in the town justice’s court. As a secretary with the New York State Police Internal Affairs Bureau, the part-time judge would perform routine clerical and administrative support for employees of the Bureau. As the Bureau is responsible for investigating and recommending resolutions of complaints against New York State troopers, the judge would be responsible for transcribing statements and interviews concerning such complaints.

         Pursuant to section 100.6(B)(4) of the Rules Governing Judicial Conduct, “[a] part-time judge may accept private or public employment 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).

         This Committee previously has advised that a part-time judge may serve as a civilian employee of the New York State Police provided that he or she disqualifies himself/herself in all cases in which the State Police are involved in any manner. Opinion 91-149 (Vol. VIII). If disqualification becomes so frequent that it interferes with the proper performance of the judge’s judicial duties, however, he/she cannot continue in both positions. Id. This Committee also has advised that a part-time judge may serve as a data entry clerk for a County Sheriff’s Department, subject to the same restriction and qualification. Opinion 03-118. A part-time judge cannot, however, act as a private consultant to the New York State Police, reviewing open cases and advising the State Police on the use of new forensic technologies to solve such cases, because such a relationship between law enforcement and a judge creates an impermissible appearance of impropriety, rendering such position incompatible with judicial office. Opinion 03-95.

         In the present inquiry, where the town justice’s court calendar consists almost entirely of traffic cases and criminal complaints filed by New York State troopers, also serving as a secretary to the New York State Police Internal Affairs Bureau similarly creates an impermissible appearance of impropriety that renders the position incompatible with judicial office. The town justice, therefore, should not serve in both positions. That is, the work of the Internal Affairs Bureau in scrutinizing and interpreting the conduct of individual officers, places the judge in the position of being privy to such matters which may involve officers who appear before the judge. Such knowledge, acquired extra-judicially, renders the employment inappropriate.