Opinion 24-150

October 30, 2024

Digest:  Where a part-time village justice’s jurisdiction excludes any family court matters or alleged family court offenses, the judge may concurrently maintain full-time outside employment as a special advisor to the Commissioner of the Office of Children and Family Services on the agency’s policies, programs, and initiatives.

Rules:   Uniform District Court Act § 2402; Uniform Justice Court Act § 2300(d)(2); 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.6(B)(4); Opinions 23-130; 23-66; 20-123; 19-07; 17-46.

Opinion:

          A village justice in Nassau County asks if it is ethically permissible to maintain full-time employment as an associate commissioner with the NYS Office of Children and Family Services (OCFS).  In this capacity, the judge would act as a special advisor to the OCFS Commissioner on priority human services policies, programs and initiatives and would be responsible for coordinating and monitoring activities impacting the agency’s ability to achieve its goals and mission.  According to the inquiry, OCFS “does not prosecute youth but rather provides housing, wraparound services, and funding for youth development in communities and for those youth placed in OCFS juvenile justice programs/facilities.”  The inquiring justice further advises that “Village Courts in Nassau County do not hear Family Court matters nor do they issue orders of protection” or otherwise sit as family court or criminal court judges.  To the contrary, the inquiring village justice’s jurisdiction is limited to alleged violations of village ordinances and regulations and certain alleged non-criminal violations of the vehicle and traffic law committed within the village’s geographical boundaries (see Uniform District Court Act § 2402; Uniform Justice Court Act § 2300[d][2]).

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (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][4]).  A judge’s judicial duties take precedence over all the judge’s other activities (22 NYCRR 100.3[A]).

          Where a part-time town or village justice’s “proposed concurrent public employment does not involve law enforcement or prosecutorial functions and is not likely to involve the judge with persons or agencies that regularly appear before the judge, it is often permissible” (Opinion 20-123).  For example, we have said a town justice may accept outside employment as a legal assistant at the appeals and opinions bureau of the attorney general’s office (see id.); as assistant county attorney in the General Legal Services division (see Opinion 23-130); as administrator of a different county’s assigned counsel program (see Opinion 23-66); or as head of a county agency responsible for licensing and enforcement of county law in a particular industry, but without police or prosecutorial powers and unlikely to be involved in any cases in the judge’s court (see Opinion 17-46).

          Here, OCFS does not have any prosecutorial or quasi-prosecutorial functions, such as the prosecution of juvenile delinquency or persons in need of supervision, and likewise lacks any police powers or functions.  While OCFS may be involved in a wide variety of family-related litigation, it appears that village justices in the inquiring judge’s county lack jurisdiction to hear any family court matters or alleged family court offenses.  Indeed, given their limited jurisdiction, it seems very unlikely that any issues related to OCFS or its projects and initiatives could come before the judge’s court, whether directly or indirectly.  Accordingly, we conclude the employment is permissible. 

          As always, a part-time judge who maintains outside employment should remain alert to the possibility of conflicts arising from that employment (see e.g. Opinions 20-123 [advising town justice to disqualify if police officer or other witness appears who was judge’s ‘client’ in attorney general case]; 19-07 [requiring town justice who also worked as trail maintenance worker to disqualify in cases involving the trail or where judge’s supervisor or department is a party]).  Here, disqualification would be appropriate if a matter involving OCFS or someone under its direct supervision were to come before the village justice.