Opinion 15-158
October 22, 2015
Digest: Although a non-judge who is currently employed as a peace officer in a community college must resign that position if he/she becomes a part-time judge in a nearby municipality, he/she may undertake a new role as a campus security officer after resigning his/her peace officer status.
Rules: Criminal Procedure Law §§ 1.20; 2.10; Town Law § 31(4); Uniform Justice Court Act 22 § 105(c); 22 NYCRR 100.2; 100.2(A); 100.4(C)(2)(b); 100.6(B)(4); Opinions 13-93; 11-11; 09-210/228; 08-194; 05-73; 05-50; 03-95; 96-39.
Opinion:
A non-judge, who is employed as a peace officer at a community college, is seeking election or appointment to part-time judicial office in a nearby municipality.1 The inquirer intends to resign from his employment as a peace officer, should he/she become a judge, but would like to accept a new position with the community college as a campus security officer. The inquirer asks whether he/she may accept the new position, with duties such as assisting with making campus identification cards, making sure doors are secured, checking alarms, patrolling the campus to ensure compliance with internal college rules and regulations (e.g. enforcing “no-smoking areas”), investigating internal campus complaints and motor vehicle accidents for “internal college accident reports,” and enforcing internal campus parking regulations. The inquirer emphasizes that his/her responsibilities will be strictly internal. For example, the inquirer notes that there is no hearing on campus parking tickets; even if a student “appeals” a ticket, the decision is made by the college’s Director of Public Safety and is not heard in a court of law. Moreover, campus security officers “do not have arrest authority and possess no restraints or weapons of any kind,” and the position does not involve peace officer status.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). While a part-time judge may accept employment in the public or private sector, such employment must not be incompatible with judicial office and must not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]). In addition, a judge may not accept appointment or employment as a peace officer or police officer (see 22 NYCRR 100.4[C][2][b]; Criminal Procedure Law §§ 1.20; 2.10; Town Law § 31[4]; Uniform Justice Court Act § 105[c]).
The Committee has advised that certain employment may be incompatible with judicial office, even if it does not confer actual police officer or peace officer status, when 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 e.g. Opinions 09-210/09-228 [candidate for town justice may not continue employment as a Magnetometer Screening Officer for a nearby city police department after taking office]; 08-194 [part-time judge’s security business may not provide armed or unarmed security services to municipalities]; 05-50 [town justice may not simultaneously serve as Deputy Commissioner of Public Safety for an adjoining town]; 03-95 [part-time judge may not serve as private consultant for the New York State Police]; 96-39 [part-time judge may not serve as Special Deputy U.S. Marshal]).
Nevertheless, in other situations, the Committee has advised part-time judges that security-related extrajudicial employment is permissible. For example, the Committee has advised that part-time non-lawyer judge may accept employment with a private security firm to work as a security guard at a warehouse located within the geographic jurisdiction of the judge’s court, where the position would not confer peace officer status and the judge would have no authority to make arrests, provided that the judge disqualifies him/herself from any proceeding that involves the security firm or the warehouse and further provided the position does not interfere with the proper performance of the judge’s judicial duties (see Opinion 11-11). Similarly, a part-time judge may obtain a “Watch Guard Patrol License” and operate his/her own security agency, providing unarmed and armed security services outside the geographic jurisdiction of the court in which the judge presides (see Opinion 13-93). The Committee noted the services “would include patrolling car dealership parking lots, businesses, residences, special events (concerts, festivals), executive protection, and risk management/security consultation,” but did not “closely resemble” the duties of law enforcement officers or otherwise involve “police or peace officer status or the authority to make arrests” (id.).
In Opinion 05-73, the Committee considered an inquiry from a town judge who wished to undertake employment as a security officer at a community college in another jurisdiction (see Opinion 05-73). The judge would not be a peace officer or the functional equivalent; instead, the position involved safety inspections of the college’s grounds, checking student identification cards and issuing tickets for parking violations that would be handled within the college (see id.). The Committee advised that it was permissible for the judge to accept employment as a campus security guard under those circumstances (see id.).
Here, the inquirer, once he/she resigns from his/her current role, will no longer be a peace officer (22 NYCRR 100.4[C][2][b]). Moreover, the inquirer’s duties as a campus security officer, as described, will be substantially similar to those described in Opinion 05-73, and not functionally equivalent to holding peace officer status. Therefore, on the facts presented, the Rules Governing Judicial Conduct do not preclude the inquirer from simultaneously holding part-time judicial office in one municipality, along with employment as a (non-peace officer) campus security officer at a community college in a nearby municipality in the same county (see Opinions 13-93; 11-11; 05-73; 22 NYCRR 100.4[C][2][b]).
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1 That is, the college is not within the municipality in which the inquirer seeks to serve as a judge, although it is within the same county.