Opinion 21-184

 

January 27, 2022

 

Digest:         A town justice (1) must not serve as an animal control officer, even in another municipality, but (2) may serve as a volunteer firefighter or fire police, provided these roles do not involve peace officer or police officer status.

 

Rules:          CPL 1.20; 2.10; 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(2)(b); 100.6(B)(4); Opinions 16-167; 15-09; 10-61; 09-237; 07-163; 07-146; 00-04; 98-54; 98-30; 90-61; 88-114.

 

Opinion:

 

         A new part-time town justice inquires if it is permissible to serve as a municipal animal control officer in another county, as a volunteer firefighter, and as a member of the fire police. We understand that the “fire police” role, despite its name, is a position that strictly involves traffic safety and does not confer arrest powers or any peace officer or police officer status.

 

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]). Accordingly, any extra-judicial activities must be compatible with judicial office and must not (1) cast doubt on his/her capacity to act impartially as a judge, (2) detract from the dignity of judicial office, or interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). Among other restrictions, a judge may not serve as a peace officer or police officer (see 22 NYCRR 100.4[C][2][b]; CPL 1.20; 2.10). Finally, a part-time judge’s outside employment is governed by Section 100.6(B)(4):

 

A part-time judge 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.

 

1. Employment as Animal Control Officer

 

         We have said a part-time lawyer judge may not serve as a prosecutor, even in another jurisdiction (see Opinions 16-167 [federal prosecutor]; 07-163 [special prosecutor in another county]; 00-04 [town building inspector/code enforcement officer]; 98-30 [special district attorney in another county]). Indeed, we have advised that a part-time lawyer judge also must not perform “quasi-prosecutorial duties, such as handling juvenile delinquency and persons-in-need-of-supervision cases” (Opinion 15-09).

 

         Inasmuch as an “animal control officer is statutorily empowered to enforce [certain] ordinances by prosecuting offenders in town court” (Opinion 10-61), we conclude the positions of judge and animal control officer are incompatible, and the judge should not be employed in both positions.

 

2. Volunteering as Firefighter or Fire Police

 

         A judge may serve as a volunteer firefighter, provided this does not confer peace officer status or involve investigative responsibilities (see e.g. Opinions 07-146; 98-54; 90-61). A judge also may serve as “fire police” for a volunteer fire department, where this is “a position involving the directing of traffic in the vicinity of fires” and does not confer peace officer status (Opinion 88-114; see also e.g. Opinion 09-237).

 

         Here, too, this judge may serve as a volunteer firefighter or fire police, provided the positions do not involve peace officer or police officer status. As a reminder, the judge should recuse in any case involving a fire in which the judge “assisted in the actual fire fighting” (see Opinion 90-61) and in “any cases involving the volunteer fire department” (Opinion 88-114).