Joint Opinion 09-210/09-228

December 3, 2009

Digest:         (1) A candidate for town justice may not continue his/her employment as a Magnetometer Screening Officer for a nearby city police department after taking office. (2) A part-time town or village justice may not accept a position with the Department of Homeland Security as a Transportation Security Officer.

Rule:            Criminal Procedure Law §2.10; Town Law §31(4); Uniform Justice Court Act §105(C); 100.2; 100.2(A); 100.4(C)(2)(b); 100.6(B)(4); 08-194; 08-184; 07-75; 05-50; 03-118; 03-95; 00-04 (Vol. XVIII); 96-39 (Vol. XIV); 90-188 (Vol. VI)

Opinion:

         In Inquiry 09-210, a candidate for town justice who is employed by a city police department as a Magnetometer Screening Officer (MSO) asks whether he/she may continue such employment after assuming the bench. The inquirer advises that he/she is not armed while performing the duties of an MSO and that the holder of such position is not designated as either a peace or police officer. The inquirer describes his/her duties as follows:

My duties are to screen the public before they enter the [City] Public Safety Building Courtroom. At the screening station there is both a magnetometer and x-ray machine where both persons and their property are screened for any prohibited items or contraband. In the event contraband is located, it is turned over to a sworn officer of the Department for further investigation. The only duties of the MSO are to screen those persons and their property who desire to enter the Courtroom by utilizing both the magnetometer and x-ray machine before being allowed entrance. There is also a sworn armed police officer present at the entrance should the need arise for their services. MSO’s are in Uniform, duly noting Court Security (different distinguishing uniforms than those worn by sworn police officers of the [Department].

Additional information the inquirer provided indicates that an MSO also may conduct a pat down search of a subject if necessary.

         The inquirer further advises that only the State Police or a member of the county sheriff’s department makes arrests in the town where he/she will preside and that it is possible, though rare, that he/she would arraign a defendant arrested by a member of the same police department that employs him/her as an MSO.

         In Inquiry 09-228, a part-time town justice asks whether he/she may also work for the Department of Homeland Security as a Transportation Security Officer (TSA). The judge provided the following description of a TSA’s duties:

*Perform security screening:

1. Of person, including tasks such as hand-wanding (which includes the requirement to reach and wand the individual from the floor to over head), pat-down searches, and monitoring walk-through metal detector screening equipment

2. As well as of property, including the operation of x-ray machines to identify dangerous objects in baggage, cargo and on passengers; and preventing those objets from being transported onto aircraft

*Control entry and exit points

*Continuously improve security screening processes and personal performance through training and development

As a (TSO) you will need to act swiftly and with integrity to:

*Discover and stop emerging transportation security threats, utilizing state of the art technology

*Educate and provide friendly customer service to travelers

*Screen passengers and gather intelligence

*Coordinate security involving aviation, rail, and other surface and maritime transportation

*Oversee most transportation-related responsibilities of the federal government during a national emergency

The judge also advises that the airport where he/she would be assigned is two towns away from the town where he/she presides and that he/she would have no jurisdiction to hear cases that would arise at the airport, would have no authority to detain or arrest anyone, and would not carry a firearm.

         A judge must avoid impropriety and the appearance of impropriety in all the judges’ activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). While a part-time judge may accept employment in a municipal department, such employment cannot be incompatible with judicial office and cannot conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]). In any event, a judge may not accept appointment or employment as a peace officer or police officer (see Criminal Procedure Law §2.10]; Town Law §31[4]; Uniform Justice Court Act §105[c]; 22 NYCRR 100.4[C][2][b]).

         The Committee previously has advised that certain employment is incompatible with judicial office, even if it does not confer actual police officer or peace officer status, because the duties to be performed are so closely related, or similar in nature, to law enforcement functions that a judge so employed could not avoid the appearance of impropriety (see Opinion 08-194 [part-time judge’s security business cannot provide armed or unarmed security services to municipalities]; 07-75 [part-time judge may not serve as building inspector and investigate complaints and assist in prosecuting building code violations in same municipality where the judge presides]; 05-50 [town justice should not simultaneously serve as Deputy Commissioner of Public Safety for adjoining the town]; 03-95 [part-time judge may not serve as private consultant for the New York State Police]; 00-04 [Vol. XVIII] [part-time village judge may not also serve as town building inspector responsible for issuing appearance tickets returnable in town court]; 96-39 [Vol. XIV] [part-time judge may not act as Special Deputy U.S. Marshal]; 90-188 [Vol. VI] [part-time judge may not serve as assistant district attorney in another county].

         Nevertheless, in certain situations, the Committee has advised judges that they may engage in employment even though the position involves quasi-law enforcement responsibilities. For example, in Opinion 08-184, the Committee said a town justice may serve as a town code enforcement officer for a municipality other than that in which he/she presides as long as he/she does not have jurisdiction to hear code enforcement cases that arise in the other municipality. And, in Opinion 03-118, the Committee advised that a part-time judge may work as a data-entry clerk in the county sheriff’s department where the judge would not answer telephones or act as a dispatcher. However, the judge must exercise recusal in any matters that come before him/her that involve the sheriff’s department (see id.).

         Although the position the inquiring candidate for judicial officer holds does not confer either peace officer or police officer status and he/she will fulfill his/her responsibilities in a jurisdiction other than that in which he/she presides, it is the Committee’s view that employment as an MSO is ethically impermissible. Because the judge works in a highly visible location with a police officer, members of the public may very well conclude that the judge is closely aligned with law enforcement and, therefore, reasonably question the judge’s impartiality. Moreover, the inquirer indicates that, as the town justice, he/she has jurisdiction to arraign a defendant charged with an offense committed in the municipality where he/she works as an MSO. While he/she indicates that would occur only rarely, the potential for it is sufficient to call into question the judge’s ability to be impartial.

         Similarly, it is the Committee’s view that it is ethically impermissible for a town or village justice to work as a TSO. Those duties are similar to those traditionally performed by law enforcement personnel, and the judge will perform them in a highly visible environment. Furthermore, the Department of Homeland Security symbolizes the ultimate law enforcement goal, i.e. to defeat terrorism. A judge who would serve as a TSO could not avoid the appearance of impartiality that would result (see 22 NYCRR 100.2).