Opinion 20-04

 

January 30, 2020

 

Digest:         A town justice may not serve as Stop-DWI Coordinator, even in another county.

 

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(C)(2)(b); 100.6(B)(4); Opinions 19-38; 17-173; 17-125; 16-167; 15-20; 12-181/12-186; 09-210/09-228; 09-122; 08-184; 07-163; 05-50; 95-37; 93-95; 91-124; 87-28(b).

 

Opinion:

 

         A town justice asks if he/she may also serve as Stop-DWI Coordinator in another county.1 The judge’s court does not hear cases involving the other county’s law enforcement agencies, and the fines he/she imposes as a judge do not fund the other county’s Stop-DWI program. Likewise, the other county’s Stop-DWI program is fully funded by fines levied in the other county and does not involve any criminal justice agencies appearing in the judge’s court. Also, the county “contracted the services of a full time Stop-DWI administrator through a non-profit and drug abuse council to support the day-to-day activities.”

 

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time judge may accept public employment in a municipal department or agency if the employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]). Among other restrictions, a judge must 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 (see 22 NYCRR 100.4[C][2][b]).

 

         We have construed Section 100.4(C)(2)(b) broadly, finding some positions without any formal police officer or peace officer status nonetheless incompatible with judicial office (see Opinion 17-173), because of the “non-judicial employment’s apparent connection with law enforcement functions” (see Opinions 15-20; 05-50). Whether a specific outside employment is “too closely aligned with law enforcement interests” it must be viewed from a reasonable layperson’s perspective (see Opinion 17-173). For example, a town justice may not simultaneously serve as Deputy Commissioner of Public Safety for a municipality adjoining his/her town, as “the responsibilities of that office appear as inextricably intertwined with the supervision and implementation of various law enforcement functions” (id.). Nor may a town justice continue employment as a Magnetometer Screening Officer for a nearby city police department after taking office, even though the position “does not confer either peace officer or police officer status and he/she will fulfill his/her responsibilities in a jurisdiction other than that in which he/she presides” (Opinion 09-210/09-228). Also, we said a judge may not serve as fire investigator in the same county, as the public “could reasonably perceive a fire investigator’s investigative responsibilities as cooperatively aligned in interest with law enforcement and prosecutors” (Opinion 19-38). Conversely, we said a part-time village justice may serve as training director with a city’s independent emergency communications department, where he/she oversees training of an all-civilian staff and does not supervise dispatchers or perform dispatch duties (see Opinion 17-125).

 

         Similarly, we advised “serving as a prosecutor is incompatible with judicial office and may create the appearance of impropriety as prosecutors have a special relationship with the police and other law enforcement authorities” (Opinion 16-167). This prohibition applies “even when there is no jurisdictional overlap between the two positions,” as with a town justice serving as federal prosecutor (id.) or a part-time city court judge serving as a special prosecutor in a different county (see Opinion 07-163).2

 

         We have advised that a town justice may not accept an appointment to, or serve as administrator of, a Stop-DWI program that receives funds from fines imposed in the judge’s court (see Opinions 93-95; 95-37; see also Opinion 87-28[b] [a judge with criminal jurisdiction should not be a member of a County Traffic Safety Board, when fines levied by the judge go to that Board’s Stop-DWI program]). Likewise, a judge may not accept an appointment to serve on a Stop-DWI planning board or advisory board in the same county (see Opinions 12-181/12-186; 91-124). Also, we have said, relying on prior opinions, a part-time judge may not be employed as a Stop-DWI Coordinator (see Opinion 09-122).

 

         Although we have not explicitly considered whether a judge may serve as Stop-DWI Coordinator in another county, we have recognized the Stop-DWI Program is “fundamentally aligned with prosecution and law-enforcement interests” (Opinion 12-181/12-186). In Opinion 91-124, we noted “the functions and objectives” of a Stop-DWI program ordinarily include “a goal of punishment of offenders, and the deterrence and reduction of drunk driving related accidents.” With that in mind, we said (id. [citations and paragraph break omitted]):

 

While the objectives of this stop/DWI advisory board are praiseworthy, and its members perform an important public service, its objectives and functions are too closely related to the duties and responsibilities of a judge presiding over DWI cases, namely, deterrence and punishment of offenders. Thus, the judge’s two roles appear to be incompatible and could reasonably create the public perception of a lack of judicial impartiality and an appearance of impropriety, whenever the judge presides over DWI cases. Since a judge must disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned, the judge’s membership on that board should be discontinued as a possible conflict of interest incompatible with the performance of judicial duties.

 

         We find these observations persuasive and thus conclude the position of Stop-DWI Coordinator is incompatible with judicial office, regardless of its location (see e.g. Opinions 16-167; 07-163; 05-50; 09-210/09-228). Thus, this judge may not simultaneously serve as town justice in one county and as the Stop-DWI Coordinator in another county.

 

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1 The Special Traffic Options Program for Driving While Intoxicated program is commonly referred to as STOP DWI, STOP-DWI, Stop-DWI, Stop/DWI, stop/DWI, and the like. Here, we adopt the form “Stop-DWI” as seen in the inquiry.

 

2 We have recognized at least one exception. Based on the extremely limited powers and scope of authority of a code enforcement officer, we said a town justice may serve as a town code enforcement officer in a different municipality, as long as he/she does not have jurisdiction to hear that municipality’s code enforcement matters (see Opinion 08-184).