Opinion 07-75

June 7, 2007

Digest:         Under the circumstances presented, a town justice should not serve as the town building inspector/code enforcement officer.

Rules:          CPL 2.15; Town Law 31(4); UJCA 105(c); 22 NYCRR 100.4(C)(2) (b); 100.6(B) (4); Opinions 05-50; 03-97; 03-95; 98-116 (Vol. XVII); 96-39 (Vol. XIV); 95-68 (Vol. XIII); 90-188 (Vol. VI).

Opinion:

         A part-time town justice has the opportunity to be appointed as the town building inspector/code enforcement officer. Before accepting the appointment, the justice asks whether these two positions are ethically compatible.

         The Rules Governing Judicial Conduct allow part-time judges to accept private employment and public employment in a federal, state or municipal department or agency, provided 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).

         The judge states that building inspectors do not issue accusatory instruments nor do they have peace officer status. Thus, holding that position would not expressly violate the rules or statutes prohibiting part-time judges from becoming police or peace officers. CPL 2.15; Town Law 31(4); UJCA 105(c); 22 NYCRR 100.4(C)(2)(b).

         In applying these provisions, however, this Committee has previously concluded that certain employment, including offices without peace officer status, are nonetheless incompatible with judicial office in that simultaneously holding both positions would create an appearance of impropriety due to the non-judicial employment’s apparent connection with law enforcement functions. Opinions 05-50; 03-97; 03-95; 98-116 (Vol. XVII); 96-39 (Vol. XIV); 95-68 (Vol. XIII); 90-188 (Vol. VI).

         In the instant inquiry, the “Typical Work Activities” listing (i.e., job description) provided by the judge specifically states that the building inspector “[i]nvestigates complaints and assists in prosecuting violations of the building code and zoning ordinance.” 

         It appears, therefore, that the judge, while serving as a building inspector, would be required to assist in prosecuting alleged violations of municipal codes or to serve as a prosecution witness in the judge’s own court, even though before his/her co-justice. We believe that under these circumstances, the two offices are incompatible and the town justice should not simultaneously serve as town building inspector. Opinions 05-50; 03-97.