Opinion 22-09

January 27, 2022

Digest:        A part-time judge may also serve as a deputy district executive in the same judicial district, subject to applicable administrative approvals.

Rules:          22 NYCRR 50.3(a); 100.2; 100.2(A); 100.3(A); 100.6(B)(4); Opinions 20-64; 19-32; 16-72; 09-178; 03-99; 98-113; 88-05.

Opinion:

         A part-time town justice asks if they may accept appointment as a deputy district executive in the same judicial district. A deputy district executive’s duties include performing managerial analysis of complex problems, preparing reports and recommendations, assisting local court administrators with administrative issues, and representing the district administrative judge and district executive in leadership conferences with supervising judges in the district.

         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]). While a judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), a part-time judge may nonetheless accept public 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]).

         We note, initially, that a town justice is typically supervised by a supervising judge and/or a coordinating judge or quasi-judicial official, who is in turn supervised by the district administrative judge, whereas the deputy district executive works under the supervision of the district executive who is appointed by the district administrative judge. Thus, the town justice does not appear to be subject to supervision by the deputy district executive, although both positions report to the district administrative judge. Significantly, the enumerated duties of a deputy district executive do not appear to involve town court matters and do not involve contact with its justices (compare Opinions 88-05 [town justice may simultaneously serve as deputy county clerk in charge of motor vehicle operations in the same county, as this role is sufficiently separate from town justice matters to “negate any direct conflict or incompatibility with ... judicial office”]; 20-64 [town justice may also accept employment as chief clerk of County Court but must be insulated from matters originating in the town court] with Opinions 98-113 [town justice may not simultaneously serve as deputy court clerk to another justice in the same town court]; 09-178 [among other conflicts, town justice who served as administrator of the county’s assigned counsel program would need to “approve attorneys’ vouchers as both the presiding judge and as the assigned counsel or conflicts office administrator”]).

 Nor is there any inherent impropriety in a part-time justice holding a position that involves providing advice and/or analysis on operational issues in the courts. We have said a part-time judge may serve as counsel to an association of local government officials and employees, where the judge would provide advice concerning operational issues of the justice courts (see Opinion 16-72). We also said a part-time judge who is a full-time college professor may conduct research analyzing aggregate data from the local centralized arraignment part in the same county (see Opinion 19-32). Here, too, the deputy district executive will undertake similar functions in analyzing data from the district, preparing reports and making broad recommendations (rather than intervening in individual cases).

         Accordingly, from a Part 100 perspective, we see no inherent ethical conflict in simultaneously holding the position of a part-time town justice and a deputy district executive in the same district, since the duties and responsibilities of a town justice are unlikely to overlap or conflict with the duties of a deputy district executive.

         However, while Part 100 does not bar holding both positions, we note that the Rules Governing Conduct of Nonjudicial Court Employees (Part 50) require prior written approval from the appropriate administrative authority for an individual “regularly employed in a position in the classified service of the Unified Court System” in order to hold another position “for which employment compensation or salary is payable” in “another department or agency of the State or a political subdivision, or in the Legislature or the Judiciary” (22 NYCRR 50.3[a] [dual employment rule]; Opinion 03-99 [chief clerk of city court must obtain dual employment approval to serve as town justice]). Thus, we conclude the inquirer, in their capacity as deputy district executive, should obtain any necessary administrative approvals to serve concurrently as a part-time town justice. For guidance on Part 50, court personnel may consult the Office of Court Administration’s Nonjudicial Ethics Helpline (888-283-8442 or http://inside-ucs.org/oca/ethics/index.shtml#nje) ).