Opinion 89-40

April 4, 1989

Topic:          Whether a town justice may serve as a hearing officer for a county sheriff’s office in a disciplinary proceeding against a county deputy sheriff under section 75 of the Civil Service Law.

Digest:         A town justice may serve as a hearing officer where such service is occasional, whether compensated or uncompensated, in a disciplinary proceeding brought by a county or county department against a county employee pursuant to section 75 of the Civil Service Law, which requires a hearing officer to make findings of fact, conclusions of law and a recommendation to be submitted to the appropriate county official.

Rules:          22 NYCRR 100.5(g), 100.5(h), 100.6(d)(1); Code of Judicial Conduct, Canon 5G, Compliance Section A(1); section 75 of the Civil Service Law

Opinion:

         A town justice, who in 1978 had been advised by Counsel’s Office of the Office of Court Administration that he might not accept a compensated appointment to serve as a hearing officer to conduct a hearing for removal or other disciplinary action with respect to a town police officer, pursuant to section 75 of the Civil Service Law, inquires whether such proscription applies at the present time where the appointing authority is the county sheriff rather than a town. The county sheriff’s office has asked the town justice to serve as a hearing officer in a disciplinary hearing under section 75 of the Civil Service Law brought against a deputy sheriff, a county employee. The duties of the hearing officer would be to make findings of fact, conclusions of law, and recommendations for disposition to the county sheriff, who makes the final disposition.

         Canon 5G of the Code of Judicial Conduct and section 100.5(g) of the Rules of Judicial Conduct, in nearly identical language, prohibit a judge from accepting an “appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice....” However, Canon 5G clearly applies only to full-time, not to part-time judges (see section A(1) of the rules relating to Compliance With the Code of Judicial Conduct). The Committee construes section 100.5(g) of the Judicial Conduct Rules also as inapplicable to part-time judges, since it is clear that section 100.5(h) is designed to govern part-time judges with relation to these matters. Section 100.5(h) reads:

(h) Employment of part-time judges. A part-time judge may accept private employment or public employment in a Federal, State or municipal department or agency, 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 prohibition contained in section 100.6(d)(1) on a judge’s receiving compensation for extra-judicial activity performed by or on behalf of the State or one of its political subdivisions, also makes an exception with respect to the employment of a part-time judge under section 100.5(h).

         The 1978 opinion of Counsel’s Office of the Office of Court Administration cited by the inquiring justice and which, of course, is not controlling in any event, construes provisions of Part 33 of the former Rules of Judicial Conduct of the Administrative Board of the Judicial Conference (22 NYCRR Part 33), the predecessor of Part 100 of the Chief Administrator’s Rules (22 NYCRR Part 100), some of which have been substantially amended since the date of that opinion.

         The Committee believes that section 100.5(h) of the Judicial Conduct Rules permits a part-time judge who is a town justice to serve as a hearing officer for the county sheriff’s department on an occasional and infrequent basis, which the Committee presumes is contemplated in this inquiry.

         The Committee in this Opinion does not address the question whether such service would be permissible on a regular and frequent basis.