Opinion 07-146

October 18, 2007

Digest:         A judge may serve as a volunteer Fire Prevention Officer and/or volunteer Scene Safety Person for a local fire department, as long as such positions do not confer peace officer status or involve investigative responsibilities.

Rules:          CPL §§1.20[33], 2.10; 22 NYCRR 100.4(A); 100.4(C)(2)(b); Opinions 02-57; 98-54(Vol. XVI); 95-102 (Vol. XIII); 95-06 (Vol. XIII); 90-61 (Vol. V); 89-147 (Vol. IV); 88-114 (Vol. III).

Opinion:

         A part-time judge asks if it is ethically permissible to serve as a volunteer Fire Prevention Officer and/or volunteer Scene Safety Person for a local volunteer fire department. The judge states that the position of Fire Prevention Officer involves training the public in fire prevention and fire safety. As Scene Safety Person, the judge would observe fire scenes to ensure that all persons on the fire scene are properly equipped and doing the proper job and would report any non-compliance to the Fire Chief on the scene. The judge further represents that these positions do not confer Peace Officer status as defined by the Criminal Procedure Law (see CPL 1.20[33], 2.10).

         The Rules Governing Judicial Conduct allow a judge to participate in extra-judicial activities that do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office or interfere with the proper performance of judicial duties, and are not incompatible with judicial office (see 22 NYCRR 100.4[A]). Therefore, the rules prohibit a judge from serving as a peace officer (see 22 NYCRR 100.4[C][2][b]); CPL 1.20[33], 2.10).

         This Committee has previously opined that a judge may serve as chief of a volunteer fire department, as a fire department police officer, as treasurer of a fire district or as a director of a volunteer fire department without violating the proscriptions of Section 100.4(A) (see Opinions 98-54 [Vol. XVI]; 95-102 [Vol. XIII]; 89-147 [Vol. IV]; 88-114 [Vol. III]). In addition, this Committee determined that a judge may serve as a president, vice-president, director, secretary, assistant chief or engineer for a local volunteer fire department so long as those positions do not confer peace officer status and do not involve investigative responsibilities (see Opinion 02-57).

         It is the Committee’s view, therefore, that because the positions described do not confer peace officer status or involve investigative responsibilities and the positions do not otherwise appear to violate any other provisions of the Rules Governing Judicial Conduct, the judge may serve in either or both of these volunteer positions.

         The judge must, however, exercise recusal in any case arising from a fire in which the judge was involved or in any case involving the volunteer fire department (see Opinions 02-57; 95-06 [Vol. XIII]; 90-61 [Vol.]); 89-147 [Vol. IV]; 88-114 [Vol. III]).