Opinion 17-172

January 10, 2018

Please Note: At its June 17, 2021 meeting, the Committee reviewed two conflicting lines of opinions and determined that a part-time judge may not serve as a code enforcement officer in any jurisdiction, for the reasons set forth in Opinions 00-04, 03-97, 07-75, 09-31, 09-235 and 17-36, even if alleged code violations do not involve peace officers.  Accordingly, Opinions 15-205 and 17-172 are modified to the extent inconsistent with this view. 

Dear :

         This responds to your inquiry (17-172) asking whether, as a part-time justice, it is ethically permissible to also serve as The County Attorney or an Assistant County Attorney within the same county as you preside. You indicate that in the six years you have served as town justice, neither the County Attorney nor any of his/her staff has appeared in your court.  

         Pursuant to the Rules Governing Judicial Conduct, a part-time judge “may accept ... public employment in a ... 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 (22 NYCRR 100.6[B][4]).

         We said a part-time judge may be Corporation Counsel or County Attorney if arrangements are made for a separate attorney to be a prosecutor. Thus, the inquirer may be a County Attorney or an Assistant County Attorney provided neither the judge nor any attorney under his/her supervision has any prosecutorial duties. In particular, it is essential that neither the judge nor any attorney under his/her supervision prosecutes any vehicle and traffic law charges or other violations involving peace officers. However, the judge and his/her subordinates may prosecute city code violations where the person issuing the notice of violation or appearance ticket has no peace officer status.

         Enclosed, for your convenience, are Opinions 15-205; 15-09; 07-209; 07-60 and 97-24 which address this issue.

                                                 Very truly yours,

                                                 George D. Marlow, Assoc. Justice

                                                 Appellate Div., First Dep’t (Ret.)

                                                 Committee Co-Chair

                                                 Hon. Margaret T. Walsh

                                                 Family Court Judge

                                                 Acting Justice, Supreme Court

                                                 Committee Co-Chair

Encls.