Opinion 96-39

June 13, 1996

Digest:         A town justice may not accept or engage in employment as a “Special Deputy U.S. Marshal” for an independent contractor providing court security services to the federal courts.

Rules:          22 NYCRR 100.1, 100.2, 100.4(C)(2)(b), 100.6(B)(4); CPL §§1.20 , 2.10, 2.15, 2.20; Town Law §31(5); UJCA §105(C)

Opinion:

         A part-time town justice seeks to engage in employment as a “Special Deputy U.S. Marshal”. The judge’s employer would be an independent contractor providing court security services to the federal courts. The duties of the position would include, but not be limited to protecting the judges and others utilizing the court facility, guarding the jury in and out of court and during deliberations, x-raying mail and packages entering the courthouse and acting as a bailiff.

         As Special Deputy U.S. Marshal, the judge is not directly employed by the federal courts, the U.S. Marshal Service or any other government entity and would not appear to be entitled to peace officer status. Engaging in this employment would therefore not expressly violate the ethical and statutory prohibitions preventing a judge from accepting appointment or employment as a peace officer or police officer. 22 NYCRR 100.4(C)(2)(b), Uniform Justice Court Act, §105(c), Town Law §31(5), CPL §§1.20, 2.15.

         The duties of the position, however, closely resemble duties traditionally performed by Deputy U.S. Marshals, uniformed court officers, deputy sheriffs, police officers, constables and others with peace and police officer status and powers, who provide court security services in the various state and federal courts in the State of New York. CPL §§1.20, 2.10. In addition, as a Special Deputy, the judge is directly supervised by the U.S. Marshal and his/her deputies who are law enforcement officers with specific statutory peace officer powers in New York State. CPL §§2.15, 2.20.

Section 100.6(B)(4) of the Rules Governing Judicial Conduct allows a part time judge to:

. . . . accept private employment or public employment in a federal, state or municipal department or agency provided that such employment is not incompatible with the judicial office and does not conflict or interfere with the proper performance of the judge’s duties (emphasis added). 22 NYCRR 100.6(B)(4).

         Even though the inquirer does not hold express statutory peace officer status, he/she would be acting as the functional equivalent of a peace officer in a law enforcement position and capacity. This would violate the ethical obligation to uphold the independence of the judiciary and to avoid the appearance of impropriety. 22 NYCRR 100.1 and 100.2. A judge may not do indirectly what he/she would be prohibited from doing directly.

         It is therefore the position of the Committee that the positions of town justice and Special Deputy U.S. Marshal are incompatible. 22 NYCRR 100.1, 100.2, 100.6(B)(4).