January 27, 2000
Note: Please review Opinion 08-184 before relying on this opinion, and contact the Committee for further guidance if you have any questions.
Digest: Under the circumstances presented, the positions of an acting village justice and town building inspector/code enforcement officer are incompatible, and the judge should not continue employment in both positions.
Rule: 22 NYCRR 100.6(B)(4); Opinions 90-188 (Vol. VI); 95-68 (Vol. XIII).
An acting village justice, who is also a town building inspector/code enforcement officer, inquires whether a conflict exists if the justice continues in both positions. As a town building inspector, the judge issues appearance tickets returnable in Town Court for violations of town ordinances and New York State building codes. The alleged violations are thereafter prosecuted by the town attorney. The village where the judge presides is located within the town. The village prosecutes its own violations through its building department and the village building inspector in the Village Court.
A part-time judge's employment is governed by section 100.6(B)(4) of the Rules Governing Judicial Conduct, which provides:
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.
The Committee has previously advised that a part-time judge may not serve as a district attorney because the special relationship with law enforcement makes such employment "incompatible with judicial office and may create an impermissible appearance of impropriety." Opinion 90-188 (Vol. VI). In addition, the Committee has opined that a town justice could not accept a position with the probation department because of the potential public perception of undue influence by the probation department on the judge's decisions. Opinion 95-68 (Vol. XIII).
In the present instance, the judge as a building inspector is a law enforcement official with the authority to issue tickets alleging violations of law. We regard such employment as incompatible with judicial office. In our opinion, the judge should not continue to serve as a town building inspector and acting village justice.