Opinion 18-76

June 21, 2018

Digest:         A part-time judge (1) may not serve as a county fire investigator for the same county where he/she presides but (2) may serve as a volunteer instructor at a regional police academy sponsored by a police organization in a neighboring county, where the students are police recruits who will not commence work until after they complete the training.

Rules:          CPL 1.20; 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1); 100.4(A)(1); 100.4(A)(3); 100.4(B); 100.4(D)(1)(b)-(c); 100.4(C)(2)(a)-(b); 100.6(B)(1); 100.6(B)(4); Opinions 17-42; 16-58; 14-77; 12-44; 12-32; 09-62; 07-146; 06-15; 05-76; 04-118; 03-45; 02-57; 01-87; 99-80; 98-73; 96-44; 95-105; 95-06; 94-74; 92-63.

Opinion:

         This part-time judge wishes to serve as an unpaid fire investigator in the same county where he/she presides, and as an unpaid instructor at a police academy in a neighboring county. Neither role involves peace officer status.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), but a judge may generally “speak, write, lecture, teach and participate in extra-judicial activities subject to the requirements of this Part” (22 NYCRR 100.4[B]). For example, a judge’s extra-judicial activities must be compatible with judicial office and must not “cast reasonable doubt on the judge’s capacity to act impartially as a judge” (22 NYCRR 100.4[A][1]) or “interfere with the proper performance of judicial duties” (22 NYCRR 100.4[A][3]). Subject to similar limits, a part-time judge may accept public employment (see 22 NYCRR 100.6[B][4]) or appointment to a government position concerned with issues of fact or policy unrelated to the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][2][a]).¹ However, no judge may accept appointment or employment as a peace or police officer as defined by CPL 1.20 (see 22 NYCRR 100.4[C][2][b]).²

Fire Investigator in the Same County

         As the judge explains, a volunteer fire investigator “work[s] along side with the different police departments” in the county. The investigator’s standard responsibilities include: (1) investigating suspicious fires; (2) collecting evidence; (3) taking photos of the scene; (4) dealing with insurance companies; (5) calling police if arson is involved; and (6) testifying about the scene after initial investigation. However, given the judge’s prior experience in the role, he/she would be permitted to provide his/her expertise on-site without writing a report or testifying about the scene. The judge would recuse him/herself from any case where he/she had been called to the scene of a fire or was otherwise involved in investigating it.

         Over 20 years ago, we said that a part-time judge may serve as a member of the county’s “fire cause and origin investigative team,” which “assists the Fire Chief within the County to determine the cause and origin of a fire” (Opinion 95-06), provided the position does not confer peace officer status. The inquiring judge in Opinion 95-06 noted that if the cause is deemed “suspicious,” a “law enforcement organization is immediately called in to take over,” and thus there is only “a remote possibility of being summoned as a witness” (id.).

         More recently, however, we advised that a part-time judge may serve in various roles at a local volunteer fire department, only if the positions do not confer peace officer status or “involve[] investigative responsibilities” (Opinion 02-57). We also advised that a part-time judge may serve as fire prevention officer and/or volunteer scene safety person for the fire department where “the positions described do not confer peace officer status or involve investigative responsibilities” (Opinion 07–146 [emphasis added]). While we have mentioned this requirement more recently (see Opinion 14-77), it appears we have not previously explained our reasoning or addressed its effect on Opinion 95-06.

         Reviewing these conflicting opinions, a part-time judge is not necessarily barred from investigations in all cases. Within certain limits, he/she may conduct background checks for the US Office of Personnel Management (see Opinion 16-58); be an investigator for a public defender’s office outside the court’s jurisdiction (see Opinions 01-87 [as employee of public defender]; 99-80 [hired by private attorneys retained by the public defender]); or serve as an investigator for the Unified Court System (see Opinion 05-76 [noting the need for administrative approval]). Such employment may, of course, result in the judge’s disqualification in certain cases. For example, where a private attorney hires the judge as an investigator, the judge must disqualify him/herself from the attorney’s matters for two years (see Opinion 92-63). Also, disqualification is required if “the judge has actively and recently solicited work” from the attorney (id.). Reviewing these opinions, it is significant that in each one, the judge could not be reasonably perceived as aligned in interest with law enforcement or the prosecution when hired for the described purposes.

         Opinion 12-32 advises that a part-time judge may run a business as a certified forensic science expert if: (1) the judge performs no such services in cases in the judge’s court’s jurisdiction; (2) he/she undertakes no cases for the NY State Police or other agencies that often appear in his/her court; and (3) the judge recuses if a lawyer for whom the judge is performing or has performed such services or from whom the judge has recently solicited such work, appears before the judge, and for two years after any such services end and all fees are paid.

         Viewing these precedents, we believe it inappropriate for a judge to serve as a fire investigator within the same county where he/she presides. Presumably, local prosecutors rely on investigations to decide whether to bring criminal charges in connection with a fire, and this inquiring judge acknowledges a volunteer fire investigator “work[s] along side with the different police departments” within the county. In these circumstances, a fire investigator could reasonably be seen as aligned in interest and working together with local prosecutors and local law enforcement. We believe the judge’s proposal to provide his/her fire investigation expertise on-site to other fire investigators without personally writing a report or testifying about the scene does not sufficiently mitigate an appearance of impropriety here, since he/she would be lending his/her expertise to those who will themselves write reports or testify. Thus, the judge may not serve as a fire investigator in the same county.

         We overrule Opinion 95-06 as it suggests a part-time judge may be a fire investigator in the county where he/she presides.

Police Academy Instructor in Another County

         As a pro bono police academy instructor, the judge would teach police recruits crime scene processing, forensics, evidence collection, photography and “many other techniques that have to do with [c]rime [s]cenes.” The academy is not hosted by an academic institution, but by a police entity in the other county. Its officers, and the academy’s director, currently all work for police agencies in the other county. The academy trains recruits from police agencies throughout the region, and thus the students, after completing their training, may eventually appear before him/her.³

         We are always mindful “a judge ‘must strive to avoid not only the reality, but also the appearance, that he/she is aligned in interest with law enforcement’ in the judge’s extra-judicial activities” (Opinion 14-77). A judge generally may not be an officer, or even a regular member, of a wide variety of police and/or law enforcement organizations, and may not even participate in a “ride along” program with the local police department which is “available to all public officials and citizens” (see id. [discussing prior opinions]; Opinion 03-45).

         However, we have recognized that “it may ... benefit the public interest when an organization that is involved in litigating only one side of an issue is exposed to the kind of broad and nuanced perspective that a judge can offer,” even if “a judge’s intended audience consists solely of law enforcement personnel” (Opinion 12-44). Thus, provided the circumstances do not compromise the judge’s apparent or actual impartiality, a part-time judge may teach a Vehicle and Traffic Law class to aspiring police officers at a local community college (see Opinion 98-73); teach a New York State Fire Police training course (see Opinion 06-15); and participate in a panel discussion sponsored by a sheriff’s department explaining the court’s procedures and operations as part of departmental training (see Opinion 96-44). Notably, a part-time judge may even provide forensic science and crime scene processing training to a law enforcement agency that regularly appears before him/her, as long as the judge does not (1) provide partisan advice on litigation strategy or on how better to obtain convictions, (2) comment on pending or impending matters, or (3) manifest a predisposition to decide a particular type or class of cases a certain way (see Opinion 09-62).

         In Opinion 17-42, we also advised a part-time judge could serve as a full-time SUNY employee overseeing a SUNY-hosted police academy. We specifically distinguished our prior advice that a secretary for a police academy sponsored by the village police department, who participates in training exercises “in a ‘role playing’ capacity,” may not simultaneously serve as village court clerk (id., discussing and quoting Opinion 04-118). After all, the earlier opinion involved an “ongoing ‘connection with and active participation in the training of the very police officers who will come into the court’” (Opinion 17-42, quoting Opinion 04-118), which could readily cause the court’s impartiality to be “reasonably questioned” (22 NYCRR 100.3[E][1]). As we explained (Opinion 17-42 [citation omitted]), the SUNY-hosted police academy:

is different in two important respects. First, this police academy is hosted by an academic institution, rather than by the local police agency that appears before the judge. Unlike the prospective court clerk in Opinion 04-118, this judge would be a SUNY employee, rather than a police department employee. Second, the cadets enrolled in the SUNY police academy are not active police officers; indeed, they will not appear in a law enforcement capacity before any court until after graduation.

         Here, the issue is whether this judge’s proposed pro bono service as an instructor at a police academy in a neighboring county is compatible with part-time judicial office; and whether it is likely to compromise the judge’s apparent or actual impartiality. As a judge may instruct investigators and officers, subject to certain restrictions (see Opinions 12-44; 06-15 [discussing prior opinions]), and only officers who have already graduated from the academy, rather than currently attending recruits, will appear before the judge, we conclude this judge may volunteer as an instructor (cf. Opinion 17-42). We note, although this police academy is hosted by a police entity, rather than an academic institution, the hosting organization is based in another county. For example, the academy’s director is a police lieutenant in the other county, and is thus unlikely to appear in the judge’s court.

         Thus, we conclude this volunteer work is permissible, subject to applicable limits on judicial speech and conduct, including limits discussed in prior opinions. For example, the judge must be cautious “to avoid the perception that he/she is providing partisan advice on litigation strategy or tactics” and must not “manifest a predisposition to decide a particular type or class of case a certain way” (Opinion 12-44 [citations omitted]). As teacher of a “regular course of study” at the police academy, the judge may, with circumspection, “comment within the classroom on actual cases pending in courts, in other jurisdictions,” but may not discuss any “cases pending within the general jurisdictional locale” of the judge’s court and the police academy (Opinion 95-105). As always, the judge must ensure his/her comments promote public confidence in the judiciary’s integrity and impartiality.

         Last, in the event one of his\her students appears before him/her before the course ends, the judge must recuse, subject to remittal (see Opinion 94-74). But, the judge may preside in cases involving former students if he/she can be fair and impartial (id.).

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¹ Part-time judges are exempt from some restrictions applicable to full-time judges (see 22 NYCRR 100.6[B][1]).

² Because the positions are unpaid, we need not here consider the prohibition on engaging in “financial and business dealings that: ... (b) involve the judge with any ... activity that ordinarily will come before the judge; or (c) involve the judge in frequent transactions” with “persons likely to come before the court on which the judge serves” (22 NYCRR 100.4[D][1][b]-[c]).

³ Although the academy’s policy requires that recruits be sworn in before the start of a recruit class at the academy, the inquiring judge has stated that they do not commence work as peace officers or police officers until after they complete the training. Thus, they will not appear before any court during the training.