Opinion 18-77

May 10, 2018

Digest:         A part-time judge may maintain concurrent employment as the chief financial officer/treasurer for an airport authority, whose employment duties include oversight of accounting and financial affairs, information technology services, purchasing and procurement and do not involve fund-raising or law enforcement functions.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1); 100.6(B)(4); Opinions 18-07; 17-125; 17-55; 12-73; 09-210/09-228; 09-32; 07-204; 98-93; 95-02; 94-03; 92-36.

Opinion:

         A new part-time town judge asks if he/she may maintain concurrent employment with a regional airport authority as its chief financial officer/treasurer (CFO). As CFO, the judge is the custodian of the authority’s assets, funds and securities and oversees all accounting and financial activities, investments, internal audits, debt management, capital improvement funding, insurance, employee benefits, payroll, information technology services, purchasing and procurement. The duties as CFO involve no fund-raising, law enforcement or quasi-prosecutorial functions.¹

            A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Although a judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[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]). A judge must also disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         Although we have not been previously asked if a part-time judge may accept employment with an airport authority created under the Public Authority Law, we have recognized part-time judges may be employed by the county or municipality where they preside. For example, in Opinion 18-07 (citations omitted), we advised:

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. A part-time judge may also be involved in overseeing administration of a licensed profession unrelated to the law.

We also advised a part-time town or village justice may be employed as the appointed assessor for his/her municipality, although he/she must disqualify him/herself when the municipality appears as a party (see Opinion 07-204); or as a training director with a city’s independent emergency communications department, where he/she oversees training of an all-civilian staff and does not supervise dispatchers or perform dispatch duties (see Opinion 17-125).

         We are unaware of any reason to treat an airport authority differently from other such governmental employers, as the entity is unlikely to appear in the inquirer’s court and appears to be associated primarily with transportation functions rather than law enforcement goals (cf. Opinion 09-210/09-228 [part-time justice “may not accept a position with the Department of Homeland Security as a Transportation Security Officer,” as the duties “are similar to those traditionally performed by law enforcement personnel” and the agency itself “symbolizes the ultimate law enforcement goal, i.e. to defeat terrorism”]).

         The specific job responsibilities, such as oversight of accounting and financial affairs, information technology services, purchasing and procurement, also appear permissible. A part-time judge may concurrently serve as school tax collector, “receiving school tax payments during a two-month period” and then closing out the books (Opinion 12-73); as treasurer of his/her residential co-operative apartment building, “pay[ing] monthly bills, occasionally speak[ing] with vendors, and deposit[ing] monthly maintenance checks” and signing the co-op’s tax returns (Opinion 98-93); and as treasurer of a community Independence Day parade and celebration committee, “depositing proceeds and paying bills,” provided the judge does not participate in any fund-raising activities (see Opinion 92-36).

         A part-time town justice may also be employed as director of information technology for the county (see Opinion 18-07); may use his/her skills as a logistics expert to plan and manage supplies or donations for the Red Cross as they are received (see Opinion 17-55); serve as space coordinator for a local church (see Opinion 94-03); and assume “duties such as ordering food and processing paper work currently performed by the head of a local food pantry” (Opinion 09-32).

         On these facts, we see no incompatible or conflicting duties in the two positions. Thus, this part-time judge may also be employed as CFO of this regional airport authority, subject to generally applicable limits on judicial speech and conduct.

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¹ For example, we understand the CFO’s responsibilities do not include encouraging the legislature to appropriate funds for the airport authority, which would be prohibited (cf. Opinion 95-02 [public library]).