Opinion 18-131

October 18, 2018

Digest:         A town justice who had a decades-long career in the town’s police department and retired as Assistant Chief of Police shortly before assuming judicial office (1) must not preside in cases where the arrests or summonses were issued during his/her former employment but (2) may adjudicate new matters involving the police department provided the judge had no involvement in the matter and the judge can be fair and impartial.

Rules:          22 NYCRR part 100 (preamble); 100.2; 100.2(A); 100.3(E)(1); Opinions 09-222; 03-133; 99-11; 98-27; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring candidate for town justice has a decades-long career in law enforcement and served as the town’s Assistant Chief of Police for several years.¹ He/she is running unopposed and now plans to retire a few months before assuming judicial office. The candidate asks if he/she will be able to preside in cases where the arrests or summonses were issued while he/she was the assistant police chief. An organization chart shows that the assistant police chief reports directly to the Police Chief, as do the heads of the investigative division, the patrol division, and the dispatch and finance division. Thus, as assistant police chief, the candidate has no oversight of these other divisions. Instead, he/she supervises administrative personnel, none of whom investigate crimes, make arrests or issue traffic summonses. Units under his/her chain of command include cellblock/detention officers, court security, community crime prevention officers, tactical training and personnel development, as well as headquarters and support services, records management, and animal control.

         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]). Therefore, a judge must disqualify him/herself in a proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         A town justice who formerly served as the town’s Police Chief must disqualify him/herself from all matters involving the police department that were pending as of the date the judge left such employment (see Opinion 03-133). In essence, because a police chief is ultimately responsible for the actions and conduct of the officers under his/her command, he/she is necessarily “involved” in all cases the police department handles. Therefore, he/she is disqualified from all cases that were pending with the police department on the date he/she left such employment (id.). We applied a similar standard where a judge was previously a high-ranking deputy county attorney and it was “highly unlikely that the judge could clearly identify all matters involving various county agencies, in which the judge personally participated” (Opinion 99-11).² Conversely, where a town justice previously held a non-supervisory position in the town police department, he/she may preside in cases involving the town’s police department “as long as he/she had no personal involvement with the matter before him/her” (Opinion 09-222).

         Although this candidate was the Assistant Chief of Police rather than the Police Chief and did not have supervisory authority over the investigative division, patrol division, or dispatch and finance division, he/she was nonetheless serving in a high-ranking, policy-making capacity as a member of the police department’s executive staff and reported directly to the Police Chief. This high-profile role, as second in command to the Police Chief, could at the very least create a public perception of partiality in matters pending in the police department during his/her tenure. Therefore, on assuming judicial office, the candidate must disqualify him/herself from cases where the arrests or summonses were issued during his/her employment with the police department (see generally Opinion 03-133; 22 NYCRR 100.3[E][1]). In reaching this result, we expressly note that the candidate had no personal or supervisory involvement with the police department’s investigative division and, therefore, may have particular difficulty in discerning whether a matter was investigated during his/her prior employment. By contrast, the date of the arrest or summons will be clear on the face of the instruments or other documents presented to the court (cf. 22 NYCRR 100, Preamble [“The rules governing judicial conduct are rules of reason.”]).

         However, the judge may adjudicate new matters involving the police department, provided the judge had no personal involvement whatsoever in the matter and assuming the judge can be fair and impartial. The judge need not disclose his/her prior employment in such matters but may do so in his/her discretion.³

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¹ Before becoming the town’s assistant police chief, the inquirer held many different positions in the police department, including SWAT, field training officer, first line supervisor in administration and patrol, afternoon and day shift patrol lieutenant, accident investigation unit lieutenant, information technology supervisor, and an instructor in the department’s citizens police academy.

² The Assistant Chief of Police role somewhat resembles the Deputy Police Chief described in Opinion 98-27. There, a judge’s spouse’s duties as Deputy Police Chief were “essentially administrative, and [did] not involve investigations, prosecutions or supervision of officers in arrests and prosecutions,” but he/she was nonetheless “at the highest echelon of the Department, issuing press releases and conducting press conferences” (Opinion 98-27). Although the judge’s spouse would not have any direct or supervisory involvement in any police matter, in light of the “high public visibility” of the position, we felt the judge should not preside in any police matters absent full disclosure and consent of the parties and their counsel (id.).

³ Where, as here, disqualification is not mandatory, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if the judge questions his/her ability to be impartial in a particular matter, he/she must not preside.