Opinion 09-238

January 27 - 28, 2010

Digest:         (1) A newly elected part-time town justice who is employed by the county health department may not continue to participate in Adolescent Tobacco Use Prevention Act (ATUPA) enforcement activities for the department after he/she takes office. (2) A newly elected part-time town justice may continue to serve on the board of a foundation that raises money to pay for students to attend college, but cannot participate in any of the foundation’s fund-raising activities.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.6(B)(4); Opinions 08-193; 07-75; 05-50; 01-47; 98-116 (Vol. XVII); 97-64 (Vol. XVI); 96-39 (Vol. XIV); 95-106 (Vol. XIII); 95-68 (Vol. XIII) .

Opinion:

         A newly elected part-time town justice who is employed by the county health department asks whether he/she may continue to participate in Adolescent Tobacco Use Prevention Act (ATUPA) enforcement activities for the department after he/she takes office. The judge advises that approximately five times a year he/she accompanies underage teenagers when they visit retail establishments and attempt to buy cigarettes. According to the judge, if a retail establishment sells cigarettes to the underage teens, he/she prepares a certified stipulation pursuant to which the retailer agrees to pay a fine. However, according to the judge, the retailer may contest the allegations at a hearing at which the judge would testify.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s 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]). A part-time judge may accept public employment in a federal, state or municipal department or agency, provided that the employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]). Nevertheless, a judge’s judicial duties must take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]).

         The Committee previously has advised that a part-time judge may not simultaneously hold certain positions involving law enforcement functions because they are incompatible with judicial office and/or create an appearance of impropriety (see 22 NYCRR 100.2; Opinion 07-75 [part-time judge may not serve as building inspector and assist in prosecuting alleged violations of municipal codes or serve as a prosecution witness in the judge's own court]; 05-50 [town justice may not be Deputy Commissioner of Public Safety for another town]; 01-47[ part-time judge should not accept employment in the Sheriff's Department as a civilian court aide in County Court]; 98-116 [Vol. XVII] [part-time judge should not be employed as a dispatcher for Sheriff's Department in the same county where the judge presides]; 96-39 [Vol. XIV] [town justice may not be a Special Deputy U.S. Marshal for the federal courts]; 95-106 [Vol. XIII] [part-time judge may not accept Civil Service employment as a 911 dispatcher in the same county in which the judge presides]; 95-68 [Vol. XIII] [town justice should not be employed by the county probation department]).

         For the same reasons, the judge in the present inquiry should not continue to participate in ATUPA enforcement activities as part of his/her employment by the county health department. As an ATUPA enforcement officer, the judge’s responsibilities are comparable to those of a police officer or code enforcement officer. The stipulation the judge prepares is comparable to an accusatory instrument, and the judge’s role in testifying during a hearing is comparable to that of an arresting officer who testifies about a traffic stop. If the judge continues to participate in ATUPA enforcement activities, he/she cannot avoid the appearance of impropriety (see 22 NYCRR 100.2; Opinion 01-47) or promote the public’s confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). In any event, the Committee finds the ATUPA enforcement activities to be incompatible with judicial office (see 22 NYCRR 100.6[B][4]; Opinion 07-75).

         The inquirer also asks whether he/she may continue to serve on the board of a foundation that raises money for students who attend schools in a neighboring municipality to attend college if he/she “stay[s] away from fund solicitation and perhaps limits [his/her] involvement to selecting students.”

         The Committee previously has advised that a judge may serve on a panel that will award annual student-athlete scholarships on behalf of a hospital’s community relations board, and this inquiring judge may likewise do so, provided, however, the judge will not be involved in any fund-raising (see Opinion 08-193). The Committee also has advised that a part-time village justice may serve as president of a local United Way organization as long as the judge complies with the limitations set forth in the Rules Governing Judicial Conduct about serving as a member or officer of a not-for-profit educational, religious, charitable, cultural, fraternal or civic organization including those related to fund-raising (see Opinion 97-64 [Vol. XVI]). Therefore, the judge in the present inquiry may continue to serve on the foundation board, subject to the limitations set forth in the Rules Governing Judicial Conduct, particularly those that prohibit a judge’s participation in fund-raising activities.