Opinion 18-158

January 3, 2019

Dear :

         This responds to your inquiry (18-158) asking whether you may serve as a Police Chief for a neighboring village, where the village police do not appear before the town court. You have explained that the full-time police chief position in the neighboring town has been replaced with a part-time, administrative position that involves only scheduling personnel, completing state and local reports, and assigning shifts and overseeing the department budget. The position will have no contact with the DA’s office.

         A judge must not serve as a peace officer or police officer (see 22 NYCRR 100.4[C][2][b]) and we have previously advised that this prohibition includes employment which “does not confer actual police officer or peace officer status, because the duties to be performed are so closely related, or similar in nature, to law enforcement functions that a judge so employed could not avoid the appearance of impropriety” (see Opinion 09-210/09-228). See also, Opinions 17-173 and 96-39.

         We have also advised that the position of police chief and town justice are incompatible as “a police chief is ultimately responsible for the actions and conduct of the officers under his or her direction” (see Opinion 03-133).

         Enclosed, for your convenience, are Opinions 17-173;

09-210/09-228; and 03-133, for your review, which address this issue.

                                       Very truly yours,

                                       George D. Marlow, Assoc Justice

                                       Appellate Div., First Dept. (Ret)

                                       Committee Co-Chair 

                                       Hon. Margaret T. Walsh

                                       Supreme Court Justice

                                       Committee Co-Chair

Encls.