March 8, 2001
A judge should not continue to serve as assistant district attorney in
one county and hold a position as a part-time judge in another county even
if that other county is in a different judicial district and Appellate
Division Department from that of the judge's court.
22 NYCRR 100.2; 100.6(B)(4);
Opinions 00-04; 98-30 (Vol. XVI);
97-24 (Vol. XV); 96-72 (Vol. XIV);
93-33 (Vol. XI); 92-108 (Vol. X).
A part-time town judge is also employed as an assistant district attorney in another county which is in a different judicial district and Appellate Division Department from that of the judge's court.
The judge, who has held such dual employment since 1997, acknowledges that this Committee in 1990 concluded that it was improper for a part-time judge to serve as an assistant district attorney in an adjoining county. Opinion 90-188 (Vol. VI). But, the judge claims, since there has never been any question raised concerning a possible conflict or impropriety involving the judge, and there is no jurisdictional overlap between the two positions (except for New York State Police operations) there is no basis for a finding of incompatibility in this instance. Further, the judge rejects the idea that there is some affinity between a prosecutor's office and law enforcement personnel, since criminal conduct on the part of the latter would be investigated and prosecuted by the district attorney's office.
We have reviewed the judge's submission and conclude that nothing set forth therein warrants a conclusion other than what was expressed in Opinion 90-188 (Vol. VI) and reiterated by the Committee on at least six occasions: the position of prosecutor is incompatible with judicial office under section 100.6(B)(4) of the Rules Governing Judicial Conduct (and its predecessor), and such dual employment creates an appearance of impropriety in violation of section 100.2 of the Rules. There is unquestionably a special relationship between police and other law enforcement authorities and a prosecutor's office, of which the judge is surely aware. It is that indisputable fact which is at the basis of Opinion 90-188 (Vol. VI) and its continuing reaffirmance by the Committee. See Opinions 00-04; 98-30 (Vol. XVI); 97-24 (Vol. XV); 96-72 (Vol. XIV); 93-33 (Vol. XI); 92-108 (Vol. X). Accordingly, the inquiring judge should not continue to serve as an assistant district attorney.