Opinion 25-16

February 6, 2025

Digest:   A part-time judge may be employed with the Division of Criminal Justice Services as an accreditation assessor for law enforcement agencies in other counties that do not appear in the judge’s court, as a reasonable layperson is unlikely to perceive this academic role as too closely aligned with law enforcement interests.

Rules:    CPL 1.20; 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(C)(2)(b); 100.6(B)(4); Opinions 23-237; 22-136; 22-135; 20-121; 20-112; 20-96; 20-28; 20-04; 18-76; 17-173; 17-42; 16-32; 14-77; 09-210/09-228; 05-50.

Opinion:

          A part-time judge asks if it is permissible to accept employment as an accreditation assessor for the New York State Division of Criminal Justice Services (DCJS) for its Law Enforcement Accreditation Program.  As described on the DCJS website:

The Law Enforcement Agency Accreditation Program is voluntary and designed to improve an agency’s effectiveness, efficiency and professionalism; promote training and foster public confidence in law enforcement.  Police departments and sheriffs’ offices are eligible to participate in the program.

Agencies must meet a set of standards in three categories: Administration, Training and Operations.  Accreditation provides formal recognition that an agency meets or exceeds expectations of quality; demonstrates that the agency performs in a professional manner, has formalized policies in place to govern its operational practices and procedures, and that its employees contribute to the agency’s mission and know what is expected of them.

In effect, the position involves auditing law enforcement agencies to ensure compliance with DCJS’s accreditation requirements.  The judge notes that many standards focus on “uphold[ing] the rights of citizens accused of crimes, or who otherwise come in contact with” participating agencies.  The auditing process includes visiting locations, making observations, and conducting interviews with members of the agency.  The judge would refrain from participating in assessments of agencies located in the same county as the judge’s court, as well as other agencies that may have connections to the court where he/she serves.

          A judge must always avoid even the appearance of impropriety and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]).  A part-time judge may nonetheless accept public employment in a municipal department or agency if the employment is compatible with judicial office and “does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]).  In addition, a judge must not accept appointment or employment as a peace officer or police officer, as those terms are defined in section 1.20 of the Criminal Procedure Law (see 22 NYCRR 100.4[C][2][b]).

          We have construed Section 100.4(C)(2)(b) broadly, ever mindful 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 14-77 [internal quotation omitted]).  Thus, we have found some positions incompatible with judicial office for that reason, even though they lack any formal police officer or peace officer status (see e.g. Opinions 22-135 [barring judge who also served as town attorney from counseling town police on Extreme Risk Protection Orders]; 20-04 [prohibiting judge from serving as Stop-DWI Coordinator]; 17-173 [advising judge not supervise EMS in county sheriff’s department]; 16-32 [advising judge not serve as in-house legal counsel to sheriff’s department]; 09-210/09-228 [barring judge from continuing employment as Magnetometer Screening Officer]; 05-50 [advising judge not serve as Deputy Commissioner of Public Safety for municipality]).

          We initially employ a two-prong test as to non-attorney positions, like the one here, for proposed employment relationships with law enforcement related agencies: “First, the part-time judge’s responsibilities at the agency should not be, or appear to be, a peace officer or quasi-law enforcement role.  Second, the agency should not appear so frequently in the judge’s court so as to interfere with the judge’s judicial duties” (Opinion 16-32; see also Opinion 22-136).  However, the analysis does not stop there.  Due to public perception considerations, “the positions may still be ethically incompatible if the judge’s role will be perceived as too closely aligned with law enforcement interests” (Opinion 22-136 [internal quotations omitted]).

          As described in the inquiry, the proposed employment satisfies the initial two-prong test, as the role of accreditation assessor does not involve or confer peace officer or police officer status and cannot reasonably be seen as a quasi-law enforcement role, and the judge will not review agencies that appear in his/her court. 

          Accordingly, we turn to the issue of public perception, which turns on the nature of the proposed participation.  For example, while judges may not serve as counsel for DCJS (see Opinion 20-28), they may nonetheless serve on a “balanced” DCJS advisory board that makes recommendations on distributing federal funds to the courts (see Opinion 23-237).  Our focus is on the “non-judicial employment’s apparent connection with law enforcement functions” (Opinion 20-04 [internal quotation omitted).  Whether a specific outside employment is “too closely aligned with law enforcement interests” must be viewed from “a reasonable layperson’s perspective” (Opinion 17-173).

          We have previously advised that a part-time judge may be a member of a balanced working group to reduce and eliminate implicit bias in police academy training (see Opinion 20-96), serve as a volunteer instructor at a regional police academy sponsored by a police organization (see Opinion 18-76), and work for the State University of New York as an administrator overseeing a SUNY hosted police academy (see Opinion 17-42).  As described, the accreditation assessor position appears to be similarly academic or quasi-academic in nature, as it involves assessing compliance with existing standards for accreditation purposes.  We see no likelihood that the role will impermissibly immerse the judge in internal law enforcement agency affairs (see Opinion 20-112 [prohibiting judge from participating in police reform initiative in response to high-profile, racially charged nationwide incidents of apparent police misconduct]), nor does it involve helping any law enforcement agency “implement its programs or internal policies” (Opinion 20-121).

          Accordingly, we conclude this judge may be employed with the Division of Criminal Justice Services as an accreditation assessor for law enforcement agencies in other counties that do not appear in the judge’s court, as this academic role would not likely be perceived by a reasonable layperson as too closely aligned with law enforcement interests.