Opinion 20-54

March 19, 2020

Digest:         A part-time judge may serve as the security manager for a local racetrack, which is outside the jurisdiction of his/her court.

Rules:          UJCA § 105(c); 22 NYCRR 100.2; 100.2(A); 100.4(C)(2)(b); 100.6(B)(4); Opinions 15-181; 11-102; 11-11; 09-210/09-228; 08-194; 05-73; 96-39; 88-65.

Opinion:

         A part-time judge asks if he/she may serve as a security manager for a local racetrack, outside his/her court’s jurisdiction. The judge would supervise the track’s security officers and, if necessary, interact with local police to link law enforcement with fire and emergency management. The position confers no police or peace officer status, and neither the judge or security officers he/she supervises would be armed or allowed to make arrests.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time judge may accept private employment which is not incompatible with judicial office and does not conflict or interfere with proper performance of judicial duties (see 22 NYCRR 100.6[B][4]). However, a judge may not engage in or accept employment as a peace officer or police officer (see 22 NYCRR 100.4[C][2][b]; UJCA § 105[c]).

         We have read Section 100.4(C)(2)(b) expansively, to prohibit employment that too closely resembles those performed by law enforcement officers, even where it does not legally confer peace officer or police officer status (see Opinions 08-194 [armed and unarmed security services for local municipalities]; 96-39 [“Special Deputy U.S. Marshal” for an independent contractor providing court security services to the federal courts]; 09-210/09-228 [magnetometer screening officer for the city police; transportation security officer at local airport for the department of homeland security]).

         Nonetheless, a part-time judge may engage in security-related employment, if it is unlikely to be seen as quasi-law enforcement activity and does not otherwise create an appearance of impropriety. For example, a part-time judge may accept employment as a civilian dispatcher with a racetrack (see Opinion 88-65); as a safety/security manager at a ski resort (see Opinion 11-102); as a security consultant with a “private company which provides risk and threat assessments to various entities” (Opinion 15-181); as a warehouse security guard with a private security firm (see Opinion 11-11); and as a security officer at a community college (see Opinion 05-73). None of these positions conferred peace or police officer status, fulfilled any law enforcement or prosecutorial functions, or granted arresting authority. Also, in each case, we implicitly concluded the employment duties were not “so closely related, or similar in nature, to law enforcement functions” as to create an improper appearance (Opinion 09- 210/09-228; see e.g. Opinion 15-158 [campus security status”]).

         Here, too, the judge would have no police or peace officer status or authority to make arrests, and we conclude the duties described do not closely resemble law enforcement functions. Thus, we conclude this judge may serve as the racetrack’s security manager (see e.g. Opinions 11-102; 88-65).

         Because the racetrack is outside the judge’s court’s jurisdiction, it appears unlikely cases involving the racetrack would come before the judge. However, if so, the judge must disqualify (see e.g. Opinions 11-11 [judge who works as warehouse security guard must disqualify “from any proceeding that involves the security firm or the warehouse”]; 88-65 [judge who works as civilian dispatcher for a racetrack must disqualify “if any case comes before [him/her] involving the [racetrack]”]).¹

         If, contrary to our expectation, the judge’s outside employment results in frequent disqualification, he/she must choose between the positions (see 22 NYCRR 100.6[B][4] [outside employment must “not conflict or interfere with proper performance of the judge’s duties”]).

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¹ In Opinion 88-65, because “the Sheriff selects persons to serve” as the racetrack’s paid civilian radio traffic dispatcher, the judge was also required to disqualify in matters involving the sheriff’s office. The present inquiry does not reveal any such connection with the local sheriff.