Opinion 13-130

September 12, 2013

Digest:         A part-time judge may not maintain simultaneous employment as a pistol permit clerk in the local sheriff’s department.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.6(B)(4); Opinions 12-73; 08-145; 07-01; 03-118; 01-47.

Opinion:

         A part-time judge asks whether it would be ethically permissible to accept outside employment as a pistol permit clerk in the sheriff’s department for the county where the judge presides. The inquiring judge has provided a copy of the formal job description for the position. Among other functions, the pistol permit clerk, “under direct supervision:” reviews incoming pistol permit applications; conducts background checks and inquiries; assists the public “in the acquisition and proper disposition of firearms;” prepares a variety of records and reports; and fingerprints applicants. Although the sheriff’s department maintains and staffs the county jail at which defendants arrested within the judge’s jurisdiction are held, the inquiring judge has learned that the pistol permit clerk’s office is located “in a separate area from the jail and away from inmates.”¹ The judge indicates that the sheriff’s deputies respond to reports of criminal activity throughout the county and thus “do appear” regularly in the judge’s court.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time judge may accept outside employment that is not incompatible with judicial office and does not conflict or interfere with the judge’s judicial duties (see 22 NYCRR 100.6[B][4]). Moreover, a judge must disqualify him/herself from any proceeding in which the judge’s impartiality might reasonably be questioned, including in matters where his/her employer is a party (see 22 NYCRR 100.3[E][1]; Opinion 12-73).

         In general, for a judge to enter into an employment relationship with a law enforcement agency (such as a county sheriff’s department or the state police) which may appear in the judge’s court, two conditions must apply. First, the role must be one that is not, and does not appear to be, a peace officer or quasi-law enforcement role (compare Opinion 03-118 [behind-the-scenes data entry clerk] with Opinion 01-47 [civilian court aide who wears a uniform and helps maintain order and decorum in the courtroom]). Second, the agency must not appear so frequently in the judge’s court that holding the position would interfere with the judge’s judicial duties (compare Opinion 08-145 [employment permissible, where the municipality in which the judge will preside has its own local police force and the sheriff’s department “rarely issues any tickets or appears in” the judge’s court] with Opinion 07-01 [employment impermissible, where town justice’s court calendar “consists almost entirely of traffic cases and criminal complaints filed by New York State troopers”]). Even where the proposed employment is otherwise permissible, a judge is disqualified from matters in which his/her employer appears (see Opinion 12-73). If the judge must disqualify him/herself so frequently that it interferes with the judge’s judicial duties, the judge cannot continue to hold both offices (see Opinions 08-145; 03-118).

         Considering all of these factors in the present inquiry, the Committee believes the prospective employment is incompatible with judicial office. First, the pistol permit clerk prominently interacts with the public by, among other things, performing background checks and fingerprinting applicants “under direct supervision.” Under the circumstances presented, this is likely to be perceived as investigative, quasi-law enforcement work. Second, the sheriff’s deputies regularly appear before the judge. Therefore, the inquiring judge may not maintain simultaneous employment as a pistol permit clerk in the local sheriff’s department which regularly appears before the judge’s court (see 22 NYCRR 100.6[B][4]; Opinions 07-01; 01-47).

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     ¹ Based on an internet search, the Committee notes that the county jail and the pistol permit clerk’s office appear to share the same street address.