October 29, 2020
Digest: Whether or not a judge may hold two part-time judicial positions in the same municipal court is a legal question beyond this Committee’s jurisdiction. If it is determined that the dual service described is legally permissible, such serving would not otherwise violate any ethics rules or principles under Part 100. If there is a legal impediment to such service, the judge may not so serve.
Rules: NYS Const, art VI §§ 17, 20; Public Officers Law § 2; Second Class Cities Law § 19; Village Law § 3-303(3); 22 NYCRR 100.2; 100.2(A); 100.6(B)(4); 101.1; Opinions 18-57/17-166; 09-140; 06-161; 91-133.
A part-time judge asks if he/she may hold two part-time judicial positions in the same city court, namely an elective quarter-time position and an appointive quarter-time position. The judge says the hours of the two positions will not conflict.
A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2), must respect and comply with the law, and must act at all times in a manner that promotes 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 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” (22 NYCRR 100.6[B]).
The judge represents that the hours of the two positions will not conflict and therefore are not incompatible for time conflict reasons (see Opinion 91-133).
Our jurisdiction is limited to issuing “advisory opinions to judges and justices of the Unified Court System concerning issues related to ethical conduct, proper execution of judicial duties, and possible conflicts between private interests and official duties” (22 NYCRR 101.1).
We conclude the present inquiry is a legal question, governed by applicable statutes and/or case law rather than the Rules Governing Judicial Conduct (see e.g. Opinion 09-140 [noting that Village Law § 3-303 prohibits a part-time village justice from serving in both an elective and an appointive village office]; Second Class Cities Law § 19 [“No person shall, at the same time, hold more than one city office. Upon the acceptance by the city officer of a second office the first office held by him shall thereupon become vacant.”]). Legal questions could potentially include the current class status of the city in which the judge serves as well as the applicability (if any) of various provisions of the Second Class Cities Law, the NYS Constitution, the Public Officers Law, and/or the charter of the city in which the judge serves.1
However, if a recognized body charged with providing legal guidance determines that holding these two part-time judicial positions concurrently is legally permissible, so serving would not otherwise violate any ethics rules or principles under Part 100 (see Opinion 06-161; cf. Opinion 18-57/17-166 [“a judge does not violate the Rules Governing Judicial Conduct by fulfilling his/her statutory powers, functions, and duties as a licensing officer in good-faith reliance on statutory authority and administrative guidance on how to exercise that authority”]). Conversely, if there is a legal impediment to holding these two part-time positions, the judge is ethically prohibited from so serving (see generally 22 NYCRR 100.2[A]).
1 See e.g. Second Class Cities Law § 19; NYS Const art VI §§ 17 (Town, village and city courts; jurisdiction; judges.”), 20 (“Judges and justices; qualifications; eligibility for other office or service; restrictions”); Public Officers Law § 2 (“The term ‘local officer’ includes every other officer who is elected by the electors of a portion only of the state, every officer of a political subdivision or municipal corporation of the state, and every officer limited in the execution of his official functions to a portion only of the state. The office of a state officer is a state office. The office of a local officer is a local office.”).