Opinion 22-05

January 27, 2022

Digest:        A part-time judge may serve as an applications systems analyst for the university police of a private, not-for-profit university in another county.

Rules:          UJCA § 105(c); 22 NYCRR 100.2; 100.2(A); 100.4(C)(2)(b); 100.6(B)(4); 21-189; 20-54.

Opinion:

 A new part-time town justice asks if they may concurrently maintain full-time unsworn (civilian) employment as an application systems analyst for the university police of a private, not-for-profit university in a different county. As an application systems analyst, the judge manages the university police’s systems, “such as their police record reports system and their video system etc.” and is responsible to” make sure all their reports are compliant with [the university police’s] policies and are good to go if they ever needed to leave [their] office.” The judge “strictly work[s] with records and systems” behind-the-scenes; the role does not involve any sort of security or dispatch, nor any interactions with the public, nor any court appearances. Further, the judge states that the university’s campus police are sworn under the authority of the sheriff’s department in that other county; accordingly, they may provide “back up to the sheriff’s dept or state police” in that other county, but not in the county where the judge presides.

         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 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” (Opinion 20-54 [citing prior opinions]; see also e.g. Opinion 21-189 [prohibiting outside civilian employment as a dispatcher with the State University of New York police in the same county]). As explained in Opinion 20-54 (citations omitted):

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; as a safety/security manager at a ski resort; as a security consultant with a “private company which provides risk and threat assessments to various entities”; as a warehouse security guard with a private security firm; and as a security officer at a community college. 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.

         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 an application systems analyst for the university police of a private, not-for-profit university in another county (see id.).

         Also, because the campus police are sworn under the authority of the sheriff’s department in another county, it appears highly unlikely cases involving the university or its police would come before the judge. However, if so, the judge must disqualify (see id.).

         If, contrary to our expectation, the judge’s outside employment results in frequent disqualification, the judge 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”]; Opinion 20-54).