Opinion 19-38

March 14, 2019

Digest:         A part-time judge may not serve as a fire investigator in the same county where he/she presides.

Rules:          GML §§ 204-c; 204-d; 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1); 100.4(A)(3); Opinions 18-76; 07-146; 02-57; 1983 NY Ops Atty Gen (Inf) No. 83-67; NFPA 1033, Standard for Professional Qualifications for Fire Investigator (2014).

Opinion:

         The inquiring part-time justice is a retired law enforcement officer with decades of experience in the sheriff’s office and fire department. He/she has trained extensively as a fire investigator, and is highly credentialed. The judge asks us to reconsider and/or clarify Opinion 18-76, as he/she believes a fire investigator’s duties under National Fire Protection Association (NFPA) standards are substantially different from those described in Opinion 18-76.

         First, Opinion 18-76 says a volunteer fire investigator “work[s] along side with the different police departments.” This judge counters that fire investigators must discontinue any involvement in the investigation if law enforcement becomes involved, pursuant to NFPA standards. Indeed, seen from the other direction, fire investigators must focus only on “determining the origin, cause, responsibility, or prevention of such incidents, and the damage and injuries which arise from” them. They conclude their investigation by making a determination. At that point, if the fire investigators determined the fire was “incendiary in nature,” investigation is immediately and completely transferred to law enforcement.

         Second, Opinion 18-76 says “a fire investigator could reasonably be seen as aligned in interest ... with local prosecutors and local law enforcement.” This judge argues that, under the county’s arson plan, fire investigators are trained, and ethically required, to make their determinations objectively using the scientific method, “independent of any person or organization.”

         Third, Opinion 18-76 presumes “local prosecutors rely on investigations to decide whether to bring criminal charges in connection with a fire.” This judge says law enforcement agencies independently decide “if there is probable cause to make an arrest or bring criminal charges.”

         Finally, this judge suggests applicable ethics training and standards for fire investigators resemble judicial ethics requirements, as fire investigators must avoid conflicts and be careful with regard to “image [and] social media” to avoid even the appearance of impropriety.

         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]). Because a judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), a judge’s extra-judicial activities must not be “incompatible with judicial office” (22 NYCRR 100.4[A][3]). For example, they 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]).

         Since 2002, we have said a part-time judge may serve in a local volunteer fire department “only if the positions do not … involve investigative responsibilities” (Opinions 02-57; 07-146; 18-76). In our view, this judge’s clarifications and distinctions do not warrant a different result.

         Even if the fire investigators do not literally work together with law enforcement at exactly the same time, their investigation into “origin, cause [and] responsibility” for the fire is clearly designed for use and review by law enforcement and/or prosecutors. Indeed, the NFPA standards expressly contemplate that the fruits of fire investigations may or will be used as evidence in litigation. Fire investigators must use “proper physical and legal procedures to identify, document, collect, and preserve evidence” (NFPA 1033, Standard for Professional Qualifications for Fire Investigator [2014], at ¶ 4.4). More specifically, they must “[l]ocate, document, collect, label, package, and store evidence ... so that it is properly identified, preserved, collected, packaged, and stored for use in testing, legal, or other proceedings and examinations, ensuring cross-contamination and investigator-inflicted damage to evidentiary items is avoided and the chain of custody is established” (id., ¶ 4.4.2 [emphasis added]).

         The fire investigators’ immediate transfer of an investigation to law enforcement on determining that a particular fire was “incendiary in nature” creates the impression of a cooperative hand-off, even if the fire investigators have no further involvement once law enforcement takes over. Applicable statutes and regulations only reinforce this impression. Although each service plays a distinct role, a county’s arson plan must “provide[] for the coordination of fire, law enforcement and prosecutorial services” (GML § 204-c [emphasis added]). The police and fire departments may have concurrent investigative jurisdiction (see 1983 NY Ops Atty Gen [Inf.] No. 83-67, at *1), but the fire department generally has initial custody of the scene (see id., at *2 [“In general, a fire department is in absolute command at the scene of a fire emergency until such time as, in the judgment of the fire chief, the premises are free from immediate danger of fire or explosion and safe for occupancy”). Unsurprisingly, therefore, state law requires the fire chief, who designates fire investigators, to “determine or cause to be determined the cause of each fire or explosion which the fire department or company has been called to suppress” and file “a report containing such determination and any additional information required by [the office of fire protection and control] regarding the fire or explosion” (GML § 204-d). The fire chief must also “contact or cause to be contacted the appropriate investigatory authority if [he/she] has reason to believe the fire or explosion is of incendiary or suspicious origin” (id.). This impression of cooperation with law enforcement is further underscored by NFPA standards “encourag[ing]” fire investigators to “interact with other professionals ... for the effective transfer of information, which can be general, such as what is related in training seminars or journals, or specific to one particular incident” (NFPA 1033, at § A.4.1.4).

         Similarly, while law enforcement and/or prosecutors must doubtless make their own independent determinations of probable cause to make an arrest or prosecute charges, it is difficult to imagine that they do not consider and rely on the fire investigators’ report in making their own decisions. If anything, fire investigators’ rigorous adherence to the scientific method in making their reports only increases the likelihood that others will rely on it.

         Thus, we continue to believe the public could reasonably perceive a fire investigator’s investigative responsibilities as cooperatively aligned in interest with law enforcement and prosecutors. A part-time judge’s service as a fire investigator in the same county where he/she presides could create doubt as to the judge’s impartiality and/or create an appearance of impropriety under the Rules of Judicial Conduct, notwithstanding that fire inspectors must comply with their own ethical standards. Accordingly, we adhere to Opinion 18-67 and conclude a part-time judge may not serve as a fire investigator in the same county where he/she presides.