Opinion 22-120

September 8, 2022

Digest:         It would be improper for the constable who serves as the administrator and apparent head of the town constabulary to provide court security for the town court.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(C)(2); Opinions 21-93; 13-131; 98-148; 96-133.

Opinion:

         The inquiring town justice asks if they may permit the former longtime appointed chief constable of the town to provide court security in the town court. The town recently abolished the “Chief Constable” position in favor of a new position entitled “Administrator,” which is held by the same individual. As administrator, the former chief constable continues to serve as the head of the local constabulary. For example, the administrator still “exercises authority and control over the other constables, and is regarded as the official representative of the constabulary” for the town. Moreover, the administrator is frequently identified by the town and others as “Chief” (including on the town’s website) and continues to use that title personally.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C][2]).

         Absent special factors creating an appearance of impropriety, local police or other law enforcement officers generally may serve as security officers in the courtroom (see e.g. Opinions 13-131 [a town or village justice may permit a local constable to serve as a part-time court security officer, but not as a court interpreter]; 98-148 [a town or village court may use court security services provided by local, county or State law enforcement agencies or peace officers]).

         However, we have advised that it would be improper for a town’s Chief Constable or Chief of Police to provide court security for the town court (Opinions 21-93; 96-133). We explained that such dual service by the head of the local police department would “cause the judges’ impartiality to be reasonably questioned,” as the position of Police Chief “carries with it the exercise of authority, supervision and control over all subordinate police officers, including those who are appearing in the court in the same jurisdiction served by the police department” (Opinion 96-133). Significantly, “[t]he Chief of Police is likely to be regarded by the public as the official representative of the police department” (id.). We applied the same reasoning to a town’s Chief Constable in Opinion 21-93.

         The same considerations apply here, even though the constable’s title has formally changed from “Chief Constable” to “Administrator.” Significantly, the functions performed by the constable appear to remain unchanged and the constable is frequently identified by the town and others as “Chief.”

         Therefore, we conclude it would be ethically impermissible for this constable to provide court security in the town court. The judge may not acquiesce in the arrangement.