Opinion 15-181

November 13, 2015

Dear :

         This responds to your further inquiry (15-181) asking whether, if elected to the position of part-time Town Justice, you may maintain concurrent employment with a private company which provides risk and threat assessments to various entities. You advise that one of your assignments is to provide consulting services to a Public Benefit Corporation which operates a local medical facility. Your consultant responsibilities involve assessing and implementing access control, video surveillance, infrastructure security, visitor management control, reviewing and redesigning safety and security measures, training staff to deal with workplace violence and other administrative functions for the facility’s security department, which consists of Peace and Public Safety Officers. You do not have any police powers, peace officer status or a security guard card. Your primary role is to assist the Human Resources Department with internal administrative/disciplinary investigations on an as-needed basis.

         A judge must avoid even the appearance of impropriety 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 and maintain private and/or public employment with a municipal department or agency if 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]). However, a town justice is not permitted to engage in or accept employment as a Peace Officer (see 22 NYCRR 100.4[C][2][b]; Uniform Justice Court Act 105[c]).

         The Committee has previously advised that a part-time judge may accept private employment as a security officer at a community college (see Opinion 05-73); 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 (see Opinion 11-11); may work as a safety/security manager at a ski resort (see Opinion 11-102) and work as a self-employed security guard (see Opinion 13-93).

         In contrast, the Committee has also advised that a part-time judge may not simultaneously serve as County Emergency Medical Services Coordinator, since the duties involve various law enforcement functions (see Opinion 15-20). Nor may a part-time judge simultaneously serve as Deputy Commissioner of Public Safety for a municipality adjoining the town where the judge served, because the responsibilities of the office are “inextricably intertwined with the supervision and implementation of various law enforcement functions” and the office is thus incompatible with judicial office (see Opinion 05-50; see also 22 NYCRR 100.4[C][2][b]; 100.6[B][4]).

         After considering the job description and because you do not hold any statutory Peace or Police Officer status, nor fulfill any law enforcement or prosecutorial functions, the Committee concludes that your described consulting employment is not incompatible with the position of part-time town justice. Accordingly, there is no ethical prohibition to your maintaining concurrent employment with the privately owned company that provides risk and threat assessments to various entities, subject to the limitations set forth in the cited opinions.

         Enclosed, for your convenience are Opinions 15-20; 13-93; 11-102; 11-11; 05-73; and 05-05, which address this issue.

                                       Very truly yours,

                                       George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Chair

Encls.