Opinion 22-128

September 8, 2022

Digest:       A part-time town justice may not maintain employment as an “asset protection specialist” for a large retail chain.

Rules:        CPL § 1.20; 22 NYCRR 100.2; 100.2(A); 100.4(C)(2)(b); 100.6(B)(4); Opinions 20-54; 20-33; 19-38; 15-181; 15-158; 11-102; 11-11; 09-238; 09-210/09-228; 09-101; 88-65.

Opinion:

         A part-time town justice asks if it is ethically permissible to accept a position as an “asset protection specialist” at a large national retail chain. Based on the job descriptions for two potential employers, the job responsibilities of an asset protection specialist are to prevent inventory shrinkage and financial loss caused by theft and fraud, deter criminal activity, investigate and resolve issues relating to criminal activity, effectively respond to potentially violent and/or physical altercations, and support safety and environmental program compliance in the assigned stores. The asset protection specialist is also required to document apprehensions and recoveries, prepare case reports on recoveries, preserve evidence, interact with law enforcement, and testify in criminal and civil court actions.

         A judge must always avoid even the appearance of impropriety (22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (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 (22 NYCRR 100.6[B][4]). Moreover, a judge must 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]).

         A part-time judge may engage in security-related employment if it is unlikely to be seen as quasi-law enforcement activity and does not otherwise create an appearance of impropriety (see e.g. Opinions 20-54 [security manager for a local racetrack]; 15-181 [private company which provides risk and threat assessments to various entities]; 11-102 [safety/security manager at a ski resort]; 11-11 [warehouse “security guard” for a private security firm]; 88-65 [civilian traffic dispatcher for racetrack]).

         Conversely, “outside employment that appears to reflect a special relationship between the judge and law enforcement can create a public perception of undue influence” (Opinion 09-101 [citations omitted]). Thus, security-related 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]; see e.g. Opinion 09-210/09-228 [transportation security officer for the Department of Homeland Security or magnetometer screening officer for city police]).  Similarly, we advised that a judge may not serve as a fire investigator in the same county, noting that “[e]ven if the fire investigators do not literally work together with law enforcement at exactly the same time, their investigation into ‘origin, cause [and] responsibility’ for the fire is clearly designed for use and review by law enforcement and/or prosecutors” and “the fruits of fire investigations may or will be used as evidence in litigation” (Opinion 19-38). Under those circumstances, we said “the public could reasonably perceive a fire investigator’s investigative responsibilities as cooperatively aligned in interest with law enforcement and prosecutors” (id.).

         Here, in reviewing the job descriptions for an asset protection specialist, we conclude the core responsibilities are directly aligned in interest with law enforcement functions (see Opinions 19-38; 09-210/09-228). An asset protection specialist investigates crimes that have been committed, preserves evidence, cooperates with law enforcement, and testifies against suspects in court. Indeed, we have said that a “judge must strive to avoid not only the reality, but also the appearance, that he/she is aligned in interest with law enforcement” in the judge’s extra-judicial activities (Opinion 20-33 [citations omitted]). The requirement that an asset protection specialist testify in criminal and civil court actions is therefore problematic for a sitting judge (cf. Opinion 09-238 [noting that the duties of an enforcement officer for the health department are “comparable to those of a police officer or code enforcement officer” where the “stipulation the judge prepares is comparable to an accusatory instrument, and the judge’s role in testifying during a hearing is comparable to that of an arresting officer who testifies about a traffic stop”]).

         Therefore, a part-time town justice may not accept or maintain simultaneous employment as an “asset protection specialist” for a large retail chain.