Opinion 88-114

December 8, 1988

Please Note: While the Committee cannot make the legal determination of whether a "fire police" position confers peace officer or police officer status, we are advised that CPL 2.10(41) applies to "Fire police squads organized pursuant to section two hundred nine-c of the general municipal law." We suggest that judges who wish to serve as fire police carefully review CPL 2.10(41), to ensure that the position will not confer peace officer status (see 22 NYCRR 100.3[C][2][b]; CPL 1.20; CPL 2.10).

Topic:          Town justice serving as fire department police officer.

Digest:         A town justice may serve as a police officer with the local volunteer fire department, provided the position is not a peace officer position.

Rules:          22 NYCRR 100.5(h)

Opinion:

         A town justice, who is a member of the local volunteer fire department, inquires whether he may act as a “fire police,” a position involving the directing of traffic in the vicinity of fires. He states that the position has no peace officer status.

         Section 100.5(h) of the Rules of the Chief Administrator states that part-time judges may accept public or private employment provided “that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties. No judge shall accept employment as a peace officer as that term is defined in section 1.20 of the Criminal Procedure Law.”

         The judge may serve as a “fire police” provided that the position has no peace officer status pursuant to sections 1.20 or 2.10 of the Criminal Procedure Law or General Municipal Law §209, and that he gives priority to the performance of his judicial duties, and recuses himself from hearing any cases involving the volunteer fire department.