Opinion 23-207


February 1, 2024


Digest:  (1) A part-time judge who is a private investigator (a) may conduct surveillance and write reports for school districts in another county concerning extended sick leave employees, but (b) may not conduct investigations for a college regarding allegations of sexual harassment/assault.

            (2) A part-time judge may, as an instructor for a private company, present training to law enforcement regarding implicit bias and other types of biases.


Rules:   CPL 1.20; 22 NYCRR 100.2; 100.2(A), (C); 100.3(B)(8); 100.4(C)(2)(b); 100.6(B)(4); Opinions 21-55; 21-43; 20-96; 20-54; 18-76; 17-42; 16-58; 15-179; 14-77; 09-101; 09-62; 07-127; 05-76; 02-128; 01-87; 99-80; 98-52; 92-63; 91-127.




          A new part-time judge asks about continuing certain non-judicial employment.  First, the judge asks if he/she may work as a private investigator conducting a) surveillance and subsequent report writing for school districts “with regard to extended sick leave employees,” and b) Title IX investigations for a private not-for-profit college, which involves “the investigation of alleged acts of sexual harassment/assault associated with students and/or employees of the college.”[1]  Second, the judge asks if he/she may serve as an instructor for a private company which provides training on the topic of “implicit bias as well as other types of biases” both to police recruits and to experienced officers at various police academies throughout the United States.  The judge expects to instruct only at police academies outside the judge’s own judicial district.


          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  While a part-time judge may accept employment in the public or private sector, such employment must not be incompatible with judicial office and must not conflict or interfere with proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]).  Moreover, a judge must not accept “appointment or employment as a peace officer or police officer” as defined in CPL 1.20 (22 NYCRR 100.4[C][2][b]).


1. Licensed Private Investigator


          Subject to various limitations, we have advised that a part-time judge may be a licensed private investigator (see Opinions 07-127; 98-52), an investigator for a public defender’s office outside the court’s jurisdiction (see Opinions 01-87; 99-80), an investigator for the unified court system (see Opinion 05-76), and a private investigator for private attorneys (see Opinions 92-63; 91-127).  A part-time judge may also conduct background investigations for the U.S. Office of Personnel Management (see Opinion 16-58). 


          In our view, conducting surveillance and writing reports regarding a school district’s extended sick leave employees is not ethically prohibited, as long as the work is done in a county other than that in which the judge presides.  This geographical requirement should reduce the likelihood that any cases relating to the judge’s outside employment will come before the judge.  However, if they do, the judge must disqualify (see e.g. Opinions 20-54; 07-127).


          We reach a different conclusion concerning investigation of alleged acts of sexual harassment/assault associated with students and/or employees of the college.  In Opinion 21-55, we advised that a judge may not serve on a not-for-profit organization’s committee to investigate sexual harassment claims against another member of the organization.  We reasoned that serving on the investigatory committee “would reflect on the judge’s impartiality; undermine the judiciary’s integrity and independence; interfere with the judge’s official duties; or place the judge in an adversarial role” (id.).  Indeed, we advised that the judge could not participate “[e]ven though the accused individual is in another county,” as the judge’s participation “could be perceived as lending the prestige of judicial office to the findings of the [investigatory] committee in violation of 22 NYCRR 100.2(C)” (id.).  Likewise, we advised that a part-time judge should not serve on a bishop’s community review board “that recommends what measures, if any, should be taken against priests who are the subject of child abuse allegations” (Opinion 02-128). 


          In light of these prior opinions and the possibility of civil or criminal litigation involving the subject of the investigation, we conclude that the inquiring judge may not conduct Title IX investigations for a college regarding alleged acts of sexual harassment/assault (see Opinions 21-55; 21-43; 02-128).


2. Implicit-Bias Police Training


          A judge “must strive to avoid not only the reality, but also the appearance, that he/she is aligned in interest with law enforcement in the judge’s extra-judicial activities” (Opinion 14-77 [quotation and citation omitted]).  Thus, as we have recognized, “outside employment that appears to reflect a special relationship between the judge and law enforcement can create a public perception of undue influence” (Opinion 09-101 [citations omitted]).


          Nonetheless, we have advised that a part-time judge may serve as a volunteer instructor at a regional police academy sponsored by a police organization in a neighboring county, where the students are police recruits who will not commence work until after they complete the training (see Opinion 18-76); may be employed as a full-time academic SUNY employee administering and overseeing a SUNY-hosted police cadet academy (see Opinion 17-42); and may even provide forensic science and crime scene processing training to a law enforcement agency that regularly appears before the judge, as long as the judge does not: (1) provide partisan advice on litigation strategy or on how better to obtain convictions, (2) comment on pending or impending matters, or (3) manifest a predisposition to decide a particular type or class of case a certain way (see Opinion 09-62). 


          We have said a judge may give a presentation on recognizing and reducing racial prejudice, even if the audience is one-sided (see Opinion 15-179 [noting “it may benefit the public interest when an organization involved in litigating one side of an issue is exposed to the kind of broad perspective a judge can offer”]).  In so doing, the judge “must avoid commenting on pending/impending matters” and must “promote public confidence in the judiciary’s impartiality and integrity and not suggest a predisposition on any particular matter” (id.).  In a similar vein, we have also advised that a part-time judge may serve on a county executive’s working group to review training at the county police academy, where the group’s membership is balanced “and its goal is to help reduce and eliminate implicit bias” (Opinion 20-96).  We cautioned that the judge must “be mindful of the need to maintain public confidence in his/her impartiality and must take particular care not to comment on any pending or impending case in the United States or its territories” (id.).


            Considering these precedents and the nature of the proposed training, we conclude this part-time judge may present an anti-bias curriculum to police recruits and experienced officers as an instructor for a private company.  The judge must, of course, be mindful of the need to maintain public confidence in his/her impartiality and must take particular care not to comment on any pending or impending case in the United States or its territories (see 22 NYCRR 100.3[B][8]).


[1] The U.S. Department of Education explains: “Title IX of the Education Amendments of 1972 (Title IX) prohibits discrimination based on sex in education programs and activities that receive federal financial assistance.”