Opinion 22-127

September 8, 2022

Digest:         A part-time town justice may serve as a per diem chaplain for the Department of Corrections and Community Supervision in another county, but must disqualify from any case involving an inmate to whom they rendered pastoral care or assistance.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(E)(1); 100.6(B)(4); Opinions 13-25; 00-96; 96-123; 92-86; 90-201.

Opinion:

            Before assuming the bench, the inquiring part-time justice was employed by the Department of Corrections and Community Supervision (DOCCS). The inquirer now asks whether they may serve as a chaplain for DOCCS on a per diem basis, in a different county from the one in which they sit.

            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 judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). Unlike full-time judges, part-time judges may accept “public employment in a federal, state or municipal department or agency provided such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (see 22 NYCRR 100.6[B][4]). A judge must also disqualify in any proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

            We have previously advised that a part-time judge may maintain concurrent employment in correctional facilities, where the role does not involve impermissible law enforcement or quasi-law enforcement functions. For example, a part-time judge may serve as an offender rehabilitation coordinator at a DOCCS correctional facility (Opinion 13-25); a tractor trailer operator transporting inmate products (Opinion 00-96); a hair stylist at the county jail (Opinion 96-123); a nurse in the county jail (Opinion 92-86); and a drug counselor for inmates (Opinion 90-201). However, the judge must disqualify from any case involving an inmate with whom they have personally interacted in the course of their extra-judicial employment (see Opinions 13-25; 96-123; 90-201; 22 NYCRR 100.3[E][1]). If the need to disqualify arises so often as to interfere with the proper performance of the judge’s judicial duties, the judge must resign from either the judicial position or the extra-judicial employment (see Opinions 13-25; 90-201).

            Here, we likewise conclude that service as a per diem chaplain for DOCCS is not inherently incompatible with judicial office, although the judge is disqualified in matters involving an inmate to whom they have rendered individual pastoral care or assistance. As the judge will serve as a chaplain only in facilities outside the county where the judge presides, we anticipate disqualification will be relatively infrequent.