June 9, 2005
Digest: On the facts presented, a town justice may accept employment as a Security Officer at a community college.
Rules: CPL 2.15, Town Law 31(4), UJCA 105(c); 22 NYCRR 100.4(C)(2)(b); 100.6(B)(4); Opinion 96-39 (Vol. XIV).
A town justice inquires whether it is permissible to accept employment as a Security Officer at a community college.
The justice states that he/she would not be a peace officer; would not have powers of arrest beyond that of a private citizen; and, that the college is not located within his/her jurisdiction and therefore, as a judge, he/she would not be likely to be presiding over any matters related to the college.
The required duties of the position involve safety inspections of the college’s grounds, checking student identification cards and issuing tickets for parking violations. Any parking violation tickets issued would be handled within the college and there is unlikely to be any situation where the judge would be called to testify in court as the issuer of the ticket. Lastly, the justice stated that he/she would be hired by an independent security company which is retained by the college and that there is no relationship between the company and the local and state police.
Section 100.6(B)(4) of the Rules Governing Judicial Conduct allows a part-time justice to:
. . . 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 conflict or interfere with the proper performance of the judge’s duties. 22 NYCRR 100.6(B)(4).
None of these limitations appears to prevent the judge from serving in the position described. It is the position of the Committee that the inquiring town justice may therefore accept the position of an on-campus Security Officer. The facts here are distinguishable from those in Opinion 96-39 (Vol. XIV) where the Committee found that while the inquiring judge was not seeking a position which entitled him/her to peace officer status, the position of town justice was incompatible with the sought after employment because it conferred upon the justice duties traditionally performed by uniformed court officers, deputy sheriffs, police officers, and others with peace and police officer status. Thus, the Committee found that even though the justice may not be holding express statutory peace officer status, he/she would be acting as the functional equivalent of such and therefore the employment was prohibited. See, CPL 2.15, Town Law 31(4), UJCA 105(c). 22 NYCRR 100.4(C)(2)(b).
In the instant inquiry, the inquiring town justice clearly would not be holding statutory peace officer or police officer status. Nor would his/her general security duties rise to the functional equivalent of peace officer status. Further, any tickets issued for parking violations are matters for disposition within the college itself, and not enforceable in a court of law. In short, the inquirer would not be fulfilling any law enforcement function.
The Committee therefore believes that the position of Security Officer for a community college, as described, is not incompatible with the inquirer’s position as a town justice.