Opinion 95-97

September 21, 1995

NOTE: Former sections 100.4(a) and 100.5(h) have been superseded by 22 NYCRR 100.4(A)-(C) and 100.6(B)(4) respectively. The Chief Judge’s rules concerning dual employment of nonjudicial court employees now appear at 22 NYCRR 50.3.  For guidance on Part 50 (formerly Part 25), court personnel may consult the Office of Court Administration’s Nonjudicial Ethics Helpline (888-283-8442).

Digest:         A Family Court Hearing Examiner may be a candidate for and, if elected, may hold the part-time position of Town or Village Justice. A Family Court Hearing Examiner may teach a law-related college course at a local university.

Rules:          22 NYCRR 100.5 (h), 100.4(a), 25.37

Opinion:

         A recently appointed Family Court Hearing Examiner makes two inquiries: (1) whether he/she may be a candidate for, and if elected, hold the position of part-time Town or Village Justice simultaneously with the position of Family Court Hearing Examiner and (2) whether he/she may teach a law-related college course at a local university.

         There is no constitutional or statutory prohibition against a Family Court Hearing Examiner simultaneously holding the position of Town or Village Justice. Section 100.5(h) of the Rules of the Chief Administrator permits part-time judges to “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.”

         Here, assuming there is no appeal from one court to the other, the inquirer may ethically hold both offices as there is no conflict in the time of court services and there is no incompatibility in duties. (See Opinion 91-133, Vol. VIII [part-time judge may hold position of Village Justice and Acting City Court Judge]; see also Opinion 91-66, Vol. VII [part-time judge may hold a full-time position as a U.S. federal magistrate]). However, in his capacity as a Family Court Hearing Examiner, the inquirer is subject to section 25.37 of the Rules of the Chief Judge, which provides in pertinent part as follows:

No employee regularly employed in a position in the classified service in the unified court system shall, while continuing to hold such position, accept appointment or employment in any other position or title, or in any capacity whatsoever, on a full-time or part-time basis, either in the classified or unclassified service, in another department or agency of the state or a political subdivision, or in the legislature or the judiciary, for which employment compensation or salary is payable, without the previous consent in writing of his or her appointing authority, except that such consent shall be subject to the approval of the Chief Administrator of the courts....

         Accordingly, the inquirer should apply to his/her appointing authority and to the Chief Administrator of the Courts for permission to hold both positions (see Opinion 92-115, Vol. X; see also Opinion 88-67, Vol. II).

         Pursuant to sec. 100.4 (a) of the Rules of the Chief Administrator of the Courts, a judge may speak, write, lecture, teach and participate in other activities concerning the law, legal system and the administration of justice. Thus, we see no ethical prohibition to the Hearing Examiner teaching a law-related college course at a local university.