Opinion 23-57
May 4, 2023
Digest: A town justice may provide armed security services at a restricted federal facility outside the jurisdiction where the judge presides, where the facility is not open to the public and the position does not involve police or peace officer status and is not authorized to make arrests.
Rules: Judiciary Law § 212(2)(l)(iv); UJCA § 105(c); 22 NYCRR 100.2; 100.2(A); 100.4(C)(2)(b); 100.6(B)(4); Opinions 22-128; 20-54; 20-33; 15-181; 15-158; 13-93; 11-102; 11-11; 09-210/09-228; 09-101; 08-194; 05-73; 05-50; 96-39.
Opinion:
The inquirer, who plans to seek election as a town justice, has been offered an “armed security position” with a private company that operates sensitive energy-related federal facilities in certain nearby municipalities. The inquirer states that the position principally involves “site security,” does not involve police or peace officer status or any arrest powers, and does not involve any criminal investigation, prosecution, or adjudication. Instead, the list of duties includes patrolling and protecting the premises, guarding against espionage and sabotage, and reporting violations and suspicious activity. The inquirer asks if this security position is ethically compatible with part-time judicial office, where the outside employment will take place in other municipalities. The inquirer also asks about the legal effect of the Committee’s opinions.
A judge must 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 private employment that is not incompatible with judicial office and does not conflict or interfere with proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]). A judge may not engage in or accept employment as a peace officer or police officer (see 22 NYCRR 100.4[C][2][b]; UJCA § 105[c]).
The permissibility of a part-time judge’s engagement in security-related employment is highly fact-specific. In general, such employment is ethically permissible outside the geographic jurisdiction of the court where the judge presides, if it is unlikely to be seen as quasi-law enforcement activity, does not interfere with the performance of judicial duties, and does not otherwise create an appearance of impropriety (see e.g. Opinions 20-54 [security manager for a local racetrack]; 15-181 [private company that provides risk and threat assessments to various entities]; 11-102 [safety/security manager at a ski resort]). Indeed, we have said that a non-judge who is currently employed as a peace officer at a community college must resign that position if he/she becomes a part-time judge in a nearby municipality, but “may undertake a new role as a campus security officer after resigning his/her peace officer status” (Opinion 15-158).
However, even if the position does not confer police or peace officer status, “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 [part-time judge who owns an automotive towing service should not accept referrals for towing services from law enforcement agencies that appear in the justice’s court]). When the duties to be performed are “so closely related, or similar in nature, to law enforcement functions that a judge so employed could not avoid the appearance of impropriety” (Opinion 15-158), the employment is impermissible. Indeed, we have said that 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 20-33).
Of particular note here are two prior opinions that specifically address armed outside security employment. In Opinion 13-93, we said a part-time judge may obtain a “Watch Guard Patrol License” and operate a security agency, providing unarmed and armed security services outside the geographic jurisdiction of the court in which the judge presides. We noted the services “would include patrolling car dealership parking lots, businesses, residences, special events (concerts, festivals), executive protection, and risk management/security consultation,” but did not “closely resemble” the duties of law enforcement officers or otherwise involve “police or peace officer status or the authority to make arrests” (id.). Conversely, in Opinion 08-194, a part-time judge who owned a security firm asked if it was permissible to “provide both armed and unarmed security services to local municipalities.” Relying on prior opinions involving employment as a “Special Deputy U.S. Marshal” or Deputy Commissioner of Public Safety for an adjacent municipality, we said it was impermissible to “provide security services to municipalities in New York State” (id.).[1] We did not provide any detailed explanation beyond this conclusory statement.
As described, the position now at issue resembles that of a campus security officer or a watch guard patrol agency (see e.g. Opinions 15-158; 13-93; 11-11; 05-73), except that the premises to be patrolled belong to the federal government and are not open to the public. Thus, unlike a Special Deputy U.S. Marshal in a federal courthouse, a transportation security officer at an airport, or a magnetometer screening officer at a city police department, this position will not interact regularly with the public in a quasi-law enforcement capacity (compare Opinions 96-39; 09-210/09-228 with Opinion 11-11 [judge may serve as a security guard at a warehouse, where duties “include ‘checking in’ employees, incoming vendors and supply vehicles as they enter the facility and also checking the facility property as needed”]). Likewise, the restricted nature of these federal facilities makes this position different from serving as an asset protection specialist in a retail chain, which would routinely involve investigating possible criminal activity and testifying in civil and criminal cases (see Opinion 22-128).[2] Nor does this position appear to be “inextricably intertwined with the supervision and implementation of various law enforcement functions” (Opinion 05-50).
Accordingly, we conclude that it is ethically permissible for a town justice to provide armed security services at a restricted federal facility outside the jurisdiction where the judge presides, where the facility is not open to the public and the position does not involve police or peace officer status and is not authorized to make arrests. Although we anticipate that matters involving the judge’s employer and/or the facility are highly unlikely to come before the judge’s court, the judge would need to disqualify in any such matters (see e.g. Opinion 11-11).
While we cannot comment on legal questions, we note that Judiciary Law § 212(2)(l)(iv) states:
“Actions of any judge or justice of the [unified] court system taken in accordance with findings or recommendations contained in an advisory opinion issued by the panel shall be presumed proper for the purposes of any subsequent investigation by the state commission on judicial conduct.”
[1] In Opinion 05-50, we said “the responsibilities of [the Deputy Commissioner of Public Safety] appear as inextricably intertwined with the supervision and implementation of various law enforcement functions.” In Opinion 96-39, we noted the “Special Deputy U.S. Marshal” provided court security services to the federal courts, a role typically fulfilled by law enforcement officers.
[2] The present inquiry does not require us to reconsider Opinion 08-194, as it applies to providing security services to “municipalities in New York State” rather than to the federal government.