Opinion 13-144

October 24, 2013

Digest:         The Rules Governing Judicial Conduct do not prohibit a court attorney-referee from running for and, if elected, also serving as a part-time town or village justice.

Rules:          22 NYCRR 50.3; 100.6(B)(4); Opinions 12-123; 03-96; 00-12 (Vol. XVIII); 96-116 (Vol. XIV); 95-97 (Vol. XIII).

Opinion:

         An administrative judge asks whether a full-time court attorney-referee serving in Family Court may be a candidate for, and if elected, simultaneously hold the position of part-time town or village justice.

         The Rules Governing Judicial Conduct (Rules) provide that a part-time judge may accept public employment in a federal, state or municipal department or agency, provided that such 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]).

         The Committee has previously concluded that the offices of Family Court hearing examiner and part-time town or village justice are ethically compatible, “assuming there is no appeal from one court to the other,” because there is no incompatibility in the duties of the offices and no conflict in the hours of employment (see Opinion 95-97 [Vol. XIII]; cf. Opinion 12-123 [suggesting that quasi-judicial duties are unlikely to be ethically incompatible where “neither position is subject to the other’s jurisdiction, review, or approval”]). The Committee therefore advised that the inquiring hearing examiner may be a candidate for and, if elected, may hold the part-time position of town or village justice, subject to any requisite administrative approvals (see Opinion 95-97 [Vol. XIII]). The Committee has also arrived at the same conclusion from the other perspective, advising that a part-time town and village justice may also simultaneously hold the position of Family Court hearing examiner in the same county in which the justice serves, subject to administrative approval (see Opinion 96-116 [Vol. XIV]).

         In Opinion 00-12 (Vol. XVIII), the Committee noted that it saw “no basis for distinguishing between” the full-time quasi-judicial positions of hearing examiner and court attorney-referee, “with respect to the holding of part-time judicial office” (id.). Thus, the Committee advised that the Rules do not prohibit an acting part-time village justice from serving as court attorney-referee in the Family Court of the county in which the judge’s court is located, subject again to any appropriate administrative approvals (see id.).

         Therefore, the Committee concludes that the Rules do not prohibit a court attorney-referee from running for and, if elected, also serving as a part-time town or village justice, assuming that neither position is subject to the other’s jurisdiction, review, or approval, and that the duties of one position do not otherwise conflict or interfere with the duties of the other (see Opinions 00-12 [Vol. XVIII]; 96-116 [Vol. XIV]; 95-97 [Vol. XIII]; 22 NYCRR 100.6[B][4]).

         However, the Committee takes no position on whether simultaneous employment as a court employee and a part-time judge constitutes “dual employment” under section 50.3 of the Rules of the Chief Judge (see Opinion 03-96; 22 NYCRR 50.3 [dual employment requires “the previous consent in writing” of the employee’s appointing authority and, in most cases, the Chief Administrative Judge]). That question must be resolved by the Unified Court System’s Office of Court Administration, the agency with the ultimate authority to interpret Part 50 (Contact: ETHICS HELPLINE: 1-888-28ETHIC).