Opinion 16-58

May 5, 2016

Digest:         A part-time judge may conduct background investigations for the United States Office of Personnel Management.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(C)(2)(b); 100.6(B)(4); Opinions 12-189; 09-238; 09-210/09-228; 05-76; 05-50; 01-87; 99-80; 96-39.

Opinion: 

         A new part-time judge asks if his/her full-time position as a background investigator is compatible with a judgeship. The judge works for a private company that, under a federal contract, does background investigations for the United States Office of Personnel Management concerning “employment suitability of persons who require access to sensitive or classified U.S. Government information.”¹ For each inquiry, the judge interviews the applicant and his/her neighbors, employers, friends and family; searches police, court and records of other private and public institutions; and reports his/her factual findings impartially. The judge must identify him/herself as a background investigator and display official federal credentials when doing interviews, but has no power to arrest, does not carry weapons, and can take no action if a person declines an interview. The judge stresses he/she neither is, nor identifies him/herself as, a federal agent or police officer.

         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 judge must not accept any employment as a peace officer or police officer (see 22 NYCRR 100.4[C][2][b]), but a part-time judge may otherwise accept private or public employment, “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” (22 NYCRR 100.6[B][4]).

         The Committee has advised that a part-time judge may not simultaneously hold certain positions involving law enforcement functions, even if they do not legally confer peace officer status, because they are incompatible with judicial office and/or create an improper appearance (see 22 NYCRR 100.2; 100.6[B][4]; Opinions 09-238 [town justice may not continue to perform enforcement activities for the county health department]; 05-50 [town justice may not be Deputy Commissioner of Public Safety for another town]). In some instances, the position may be improper “because the duties to be performed are so closely related, or similar..., to law enforcement functions that a judge ... could not avoid the appearance of impropriety” (Opinion 09-210/09-228 [a town justice may not hold employment as a magnetometer screening officer or transportation security officer]).

         However, the Committee has said it is ethically permissible for a part-time judge to be an investigator for a public defender’s office outside the court’s jurisdiction, subject to certain limitations (see Opinions 01-87; 99-80), or an investigator for the Unified Court System, subject to administrative approval (see Opinion 05-76).

         The Committee similarly concludes there is no ethical prohibition against the part-time judge’s employment as a private background investigator for a federal agency. Here, the judge does not appear to hold a peace officer status, nor does it appear that he/she acts as a functional equivalent of a peace officer in an enforcement position (see Opinion 96-39). For example, the judge will not be screening the public as they seek to enter a secure area, “work[ing] in a highly visible location with a police officer,” or working for the Department of Homeland Security (see Opinion 09-210/09-228). In the Committee’s view, merely because the judge must use federal credentials to accurately identify his/her investigative role for the interviews does not change this result.²

         As the position cannot reasonably be viewed as involving any law enforcement functions on these facts, the Committee sees no appearance of impropriety or incompatibility with judicial office.

         This judge may therefore continue to do background inquiries for the United States Office of Personnel Management.

_______________________

           ¹ The Office of Personnel Management seeks “to recruit, retain and honor a world-class workforce for the American people” (https://www.opm.gov/about-us/). Thus, it seems to function primarily as the federal government’s human resources department rather than, for example, as a security or law enforcement agency.

           ² Opinion 12-189 is not to the contrary. The inquiring judge there wished to serve as a uniformed Indian Nation police officer, which would require the judge to “wear a badge and carry a gun” and “enforce[e] tribal law,” much like law enforcement agents. Although the badge was not described in detail, it would presumably have identified the judge as an “Indian Nation police officer,” while the present inquirer’s federal credentials identify him/her as a “background investigator” for the Office of Personnel Management.