Opinion 22-117

September 8, 2022

Digest:         A part-time town or village justice may not simultaneously serve as a Deputy Chief of the Veterans Affairs Police Department  

Rules:          CPL 1.20; 18 USC § 13; 22 NYCRR 100.2; 100.2(A); 100.4(C)(2)(b); 100.6(B)(4); Opinions 18-158; 15-158; 13-93; 12-189; 11-11; 09-210/09-228; 08-194; 03-133; 03-95; 96-39.

Opinion:

         The inquiring Deputy Chief of the Veterans Affairs Police Department (VAPD) is being considered for part-time judicial office. The Deputy Chief has primarily administrative duties at certain Veterans Affairs medical facilities. These facilities are located outside the county where the inquirer would preside, and in any event the VAPD operates only on federal land under federal jurisdiction.¹ VAPD officers investigate and initiate criminal charges for crimes occurring on federal property, make arrests, and testify in federal court, although they are not technically “police officers” as defined in CPL 1.20. The inquirer asks if the position of Deputy Chief of the VAPD is ethically compatible with service as a town or village justice.

         A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). While a part-time judge may accept employment in the public or private sector, such employment must not be incompatible with judicial office and must not conflict or interfere with proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]). Moreover, a judge may not accept “appointment or employment as a peace officer or police officer” as defined in CPL 1.20 (22 NYCRR 100.4[C][2][b]).

         We have advised that “certain employment may be incompatible with judicial office, even if it does not confer actual police officer or peace officer status, when the duties to be performed are so closely related, or similar in nature, to law enforcement functions that a judge so employed could not avoid the appearance of impropriety” (Opinion 15-158 [citations omitted]). For example, we found the following quasi-law enforcement roles to be inconsistent with judicial office: an Indian Nation police officer (see Opinion 12-189); a magnetometer screening officer for a city police department or a transportation security officer for the U.S. Department of Homeland Security (see Opinion 09-210/09-228); a consultant to the state police to “review[] open cases and advis[e] on the use of new forensic technologies to help solve such cases” (Opinion 03-95); and a Special Deputy U.S. Marshal for an independent contractor providing court security services to federal courts (see Opinion 96-39). Likewise, we said a part-time judge may not provide “armed and unarmed security services to local municipalities” (Opinion 08-194), even though they may provide security services to private clients in certain circumstances (see Opinions 13-93; 11-11).

         Here, the duties of VAPD officers are effectively the same as those performed by most state and local law enforcement officers. VAPD officers are armed and uniformed government employees who investigate criminal offenses, initiate criminal charges, make arrests, and testify in court. The primary distinction between VAPD officers and various state and local law enforcement agents appears to be that they operate in different jurisdictions under different statutory authority. Regardless of the jurisdiction, however, it is the nature of these activities and functions that creates the appearance of impropriety for a judge to serve in a law enforcement or quasi-law enforcement role.

         Further, we have advised that the position of police chief and town justice are incompatible as “a police chief is ultimately responsible for the actions and conduct of the officers under his or her direction” (Opinion 03-133). This remains true, even where the formal police chief position “has been replaced with a part-time, administrative position that involves only scheduling personnel, completing state and local reports, and assigning shifts and overseeing the department budget” and “will have no contact with the DA’s office” (Opinion 18-158).

         As the law enforcement activities of the VAPD would conflict with the proper performance of judicial duties, we conclude that a part-time town or village justice may not simultaneously serve as a Deputy Chief of the VAPD. Accordingly, if the inquirer assumes judicial office, they must resign from the Deputy Chief position.

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¹ Based on the Assimilative Crimes Act, 18 USC § 13, violations of New York State Penal Law are enforceable in federal court as violations of federal law.