Opinion 89-72

May 25, 1989

Please Note: The language of former Section 100.6(f) has been amended and is now found in two separate rules. Section 100.6(B)(4) provides: "A part-time judge: … (4) 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." Section 100.4(C)(2)(b) provides: "A judge shall 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."

In addition, the Committee notes that Opinion 89-72 (Vol. III) applies to a very specific set of circumstances, in which a sitting village trustee wishes to stand for election as a town justice. In the reverse scenario, a sitting town justice who wishes to stand for election as a village trustee must resign from judicial office “upon becoming a candidate” for that position, as defined in Section 100.0(A) (see 22 NYCRR 100.0[A]; 100.5[B]).

Topic:          Trustee of village as candidate for town justice of town wherein village is located.

Digest:         There is no ethical violation in a town justice also serving as a village trustee of a village wholly incorporated within the town, where the town and village maintain separate courts; the Committee does not address any legal questions.

Rules:          22 NYCRR 100.6(f)

Opinion:

         A village trustee has been asked to stand for election as town justice to serve in the court of the town in which the village is located. The village is wholly incorporated within the town and both the town and village maintain separate courts. If elected as town justice, the inquirer would wish to continue to hold the position of village trustee and asks whether that would be ethically permissible.

         Section 100.6(f) of the Rules of the Chief Administrator of the Courts (22 NYCRR 100.6(f)) provides:

(h) Employment of part-time judges. A part-time judge may accept private 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 Committee sees no ethical incompatibility in a town justice simultaneously holding the office of village trustee of a village wholly incorporated within the town, where the town and village each maintains its own separate court. However, if the village of which the town justice is a trustee appeared as a litigant in the town justice's court, the town justice would be required to recuse himself or herself.

         The Committee has examined only the ethical question involved and has not considered and does not address the question whether or not there might exist any legal bar in state or local law to one person holding both positions simultaneously.