Opinion 17-46
March 16, 2017
Please Note: While the outcome of this opinion remains unchanged, we note that Opinion 15-205 has been modified concerning the permissibility of prosecuting code violations. Specifically, 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.
Digest: A part-time judge may also serve as head of a county agency responsible for enforcing a particular county law, where the agency is the licensing authority for an industry and has authority to commence civil administrative proceedings but (i) is unlikely to be involved directly or indirectly in any cases in the judge’s court, (ii) has no authority to prosecute legal or criminal proceedings in any court, and (iii) has no police powers or functions.
Rules: 22 NYCRR 100.2(A); 100.4(C)(2)(b); 100.6(B)(4); Opinions 15-205; 15-09; 09-238; 05-50; 01-124; 88-05.
Opinion:
An individual who wishes to assume a part-time judicial office asks if he/she may continue to serve as head of a county agency in the same county. The agency is unlikely to be involved directly or indirectly in any cases in the judge’s court. Its purpose is “to implement [a county law] and address the influence of organized crime in [certain related] industries operating in the county.” The agency processes licensing of industry participants in the county;1 reviews all proposed company mergers; issues related licenses; and “imposes a monitor or auditor on a company when appropriate.” The agency head and his/her staff do not have peace or police officer status. The agency may commence civil administrative proceedings (not legal proceedings) against companies that allegedly violate the county law. They are heard before “an attorney/independent contractor, appointed by the County Executive.” The hearing officer may recommend a “civil penalty, license revocation or dismissal;” incarceration and criminal penalties are not available. The agency makes the final determination, which is subject to Article 78 review in Supreme Court.
A judge must always respect and comply with the law and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time judge may accept public employment in a 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]). Among other restrictions, a judge may not accept appointment or employment as a peace officer or police officer (see 22 NYCRR 100.4[C][2][b]).
A part-time judge may, in appropriate circumstances, be a county employee in the same county where he/she presides. For example, a part-time judge may serve as the deputy county clerk in charge of motor vehicle operations, where he/she will oversee “reissuing of New York registration plates and operators’ licenses,” unless he/she is called upon to assume the powers of the County Clerk (Opinion 88-05). A part-time judge may also be involved in overseeing administration of a licensed profession unrelated to the law (see Opinion 01-124 [a part-time judge who is also a licensed respiratory therapist may serve on a board which “advises and assists the Board of Regents on such matters as professional licensing, practice and conduct”]).
The novel question here concerns the county agency’s role in enforcing a county law through civil administrative hearings. In general, a part-time judge “cannot simultaneously hold a position that requires him/her to prosecute offenses” (Opinion 15-205). Indeed, the prohibition on serving as a prosecutor applies even if the prosecutorial position is in a different judicial district and appellate division department from the judge’s court (see id.). Thus, a part-time judge must not serve as a city’s Corporation Counsel if the judge personally, or any assistant or deputy corporation counsel under his/her supervision, will prosecute vehicle and traffic law charges, or any other alleged violations of law that involve peace officers (see id.). A part-time judge who wishes to serve as a non-supervisory deputy county attorney must likewise ensure that he/she will not be required to perform any “quasi-prosecutorial duties, such as handling juvenile delinquency and persons-in-need of supervision cases” (Opinion 15-09). Still, the Committee has carved out an exception where the scope of prosecutorial responsibilities are extremely narrow: a town justice may serve as a code enforcement officer for a different town, given “the limited scope of responsibilities of a code enforcement officer” as compared with “the relatively broad scope of responsibilities performed by others who serve in quasi-law enforcement roles” (Opinion 15-205).
Here, the agency enforces county laws by drafting violations against companies for specified infractions, returnable before a hearing officer who is not subject to the agency’s direction and control. The resulting administrative proceedings can only result in a civil penalty, license revocation or dismissal. They are strictly civil matters, with civil penalties, rather than criminal proceedings. Indeed, a violation may not be made returnable before a court of law. That is, the agency head does not have any prosecutorial or quasi-prosecutorial authority and does not supervise criminal prosecutors (see Opinions 15-205; 15-09). Moreover, the administrative proceedings for enforcement of the county law are somewhat analogous to code enforcement proceedings, in that they are very limited in scope and would not ordinarily involve peace officers (see Opinion 15-205 [judge must avoid even the appearance of “a special relationship with the police and law enforcement authorities”]).
Relatedly, a part-time judge may not simultaneously hold a position with duties and responsibilities that are the functional equivalent of the duties a police or peace officer performs (see e.g. Opinions 09-238 [a part-time judge who is also a county health department employee may not participate in Adolescent Tobacco Use Prevention Act enforcement activities]; 05-50 [a part-time judge may not serve as Deputy Commissioner of Public Safety in another municipality, where his/her responsibilities are “inextricably intertwined with the supervision and implementation of various law enforcement functions”]; 22 NYCRR 100.4[C][2][b]). Here, although the agency reviews an outside law enforcement officer’s background checks on license applicants, the inquiry reveals no other connection with law enforcement duties, responsibilities, or functions. The agency head and his/her staff do not have peace officer or police officer status, and their duties and responsibilities, as described, do not include the authority to perform arrests and are not otherwise the functional equivalent of a peace or police officer’s duties.
Because it is highly unlikely that any issues related to the agency or its actions would be adjudicated in the judge’s court, the Committee also sees no direct conflict or appearance of impropriety (see generally 22 NYCRR 100.6[B][4]).
Thus, the inquirer may, after assuming part-time judicial office, continue to serve as head of a county agency that is responsible for enforcing a particular county law, where the agency is the licensing authority for a particular industry and has authority to commence civil administrative proceedings but (i) is unlikely to be involved directly or indirectly in any cases in the judge’s court, (ii) has no authority to prosecute legal or criminal proceedings in any court, and (iii) has no police powers or functions.
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1Each license applicant undergoes a background check conducted by outside law enforcement personnel, not under the supervision or control of the inquirer.