Opinion 23-156

December 14, 2023

Digest:  A town justice who was previously a non-supervisory police officer in certain local police departments is not disqualified on that basis from cases involving those police departments, provided the judge (1) had no personal involvement in the matter before him/her and (2) can be fair and impartial.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3; 100.3(E)(1); 100.3(E)(1)(a)(ii); 100.4(C)(2)(b); Opinions 19-148(A); 12-06; 10-184; 06-60; 03-133; 99-168; People v Moreno, 70 NY2d 403 (1987).

Opinion:

          The inquiring town justice-elect previously served as a non-supervisory police officer in the same town, and plans to resign from a position as a non-supervisory police officer in a nearby municipality before assuming judicial office (see 22 NYCRR 100.4[C][2][b]).  The judge-elect asks if it is ethically permissible to preside in cases involving the town’s police department on assuming the bench.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must perform judicial duties impartially and diligently (see 22 NYCRR 100.3).  Therefore, a judge is disqualified in a proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including in matters where the judge has personal knowledge of disputed evidentiary facts concerning the proceeding (see 22 NYCRR 100.3[E][1][a][ii]). 

          A town judge who formerly served as the town’s police chief is disqualified from all matters involving the police department that were pending as of the date the judge left such employment (see Opinion 03-133).  In essence, because the police chief is ultimately responsible for the actions and conduct of the officers under his/her command, he/she is necessarily “involved” in all cases the department handles (see id.). 

          Here, by contrast, the inquirer was not the police chief, and did not have a supervisory role in either police department.  In general, a former non-supervisory police officer may preside over and adjudicate cases involving the same police department as long as the judge had no personal involvement with the matter before him/her (see e.g. Opinions 12-06; 10-184; 06-60; 99-168; cf. Opinion 19-148[A] [former assistant county attorney]) and provided the judge can be impartial (see 22 NYCRR 100.3[E][1]; People v Moreno, 70 NY2d 403 [1987]).  Indeed, we have advised that a judge who learned of a defendant’s prior activities through the judge’s past employment as a peace officer need not exercise recusal in “an unrelated matter” currently pending before the judge involving that defendant (Opinions 06-60; 99-168).

          Accordingly, we conclude that the inquirer is not disqualified due to his/her prior employment as a non-supervisory police officer in matters involving the police departments that formerly employed him/her, provided the judge (1) had no personal involvement in the matter now before him/her and (2) can be fair and impartial.