Opinion 22-101

June 30, 2022

Digest:         A part-time town justice may simultaneously serve as the chief administrative law judge for a town code administrative bureau in the same town.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3; 100.6(B)(4); Opinions 22-68; 22-28; 22-09; 88-05.

Opinion:

         The inquiring part-time attorney judge presides in a town court, which previously exercised jurisdiction over all town code offenses, some of which are charged as unclassified misdemeanors and others as violations. The town has established an administrative bureau to hear town code violations, leaving only the unclassified misdemeanors to be prosecuted in the town court.¹ The inquiring judge is aware of our view that the positions of town justice and administrative law judge for a town code administrative bureau are ethically compatible (see Opinion 22-68), but has recently become aware of an opportunity to head their town’s administrative bureau. This appointive position will have a title such as Director of Administrative Adjudication or Chief Administrative Law Judge, and will include duties such as establishing rules for the new bureau, implementing an evaluation program, training and hiring other administrative law judges (ALJs) and preparing a statistical analysis of the bureau’s work. The judge asks if this new Chief ALJ position is ethically permissible for him to assume.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). 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 recently examined the potential for ethical conflicts when part-time justices seek employment in other public settings. In Opinion 22-28, we said an appointed village justice may simultaneously serve as appointed deputy registrar of vital statistics for the village, but not as deputy village clerk/treasurer. We explained that “the funds being transferred to the village clerk/treasurer include court funds collected by the judge in their judicial capacity,” such that the judge would be called upon to act in a “dual capacity” with respect to “funds for which the judge is responsible” (id.).  By contrast, we saw no such conflict between the appointive roles of part-time judge and deputy registrar of the same village (see id.).

         In Opinion 22-09, we found 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 were unlikely to overlap or conflict with the duties of a deputy district executive. As described, the deputy district executive’s duties included 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 (see id.; see also Opinion 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”]).

         Most significantly, we advised that a town justice may serve as an ALJ in the same town’s administrative bureau, which adjudicates town code violations (see Opinion 22-68). The facts here are identical to Opinion 22-68, except for the responsibilities unique to the Chief ALJ as head of the administrative bureau. The duties, as described, are largely administrative or ministerial in nature, similar in many respects to the district executive duties that were addressed in Opinion 22-09. We see no conflict between the judge’s responsibilities in the town court (such as presiding in alleged unclassified misdemeanors under the town code) and the responsibilities of overseeing a bureau that conducts administrative proceedings in alleged town code violations. Activities such as developing rules of procedure for the bureau, compiling statistics on its operations, and training and evaluating its personnel are unlikely to undermine public confidence in the integrity, independence, or impartiality of either this judge or the judiciary. The judge’s apparent power, as Chief ALJ of an administrative bureau tasked with handling alleged violations of the town code, to appoint and assign other ALJs to handle such matters, also does not conflict with the part-time judge’s duties. Accordingly, as the new role does not appear to conflict or interfere with the judge’s adjudicative duties, we conclude the two positions are ethically compatible.

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¹ Of course, we “do not address legal questions, such as the propriety of the town’s actions in apparently divesting the town court of jurisdiction over alleged town code violations” (Opinion 22-68).