January 29, 2015
Digest: A non-judge who is seeking election or appointment to judicial office may remain employed as a police officer until he/she takes and files his/her oath of office as a judge.
Rules: 22 NYCRR 100.2; 100.4(C)(2)(b); 100.6(A); Opinions 14-178; 07-90; 04-137; 98-92 (Vol. XVII).
The inquiring non-judge wishes to seek appointment or election to judicial office, for a judicial vacancy which will occur on January 1, 2016.1 The inquirer is currently a police officer and his/her retirement date is later in January 2016. The inquirer is aware that a “judge shall not accept appointment or employment as a peace officer or police officer as those terms are defined in section 1.20 of the Criminal Procedure Law” (22 NYCRR 100.4[C][b]), but states he/she is willing to “take terminal leave on retirement” as of January 1, and thereafter perform no police duties. Therefore, the inquirer asks for guidance on how to comply with Section 100.4(C)(2)(b) if elected or appointed to a judicial office with a term commencing January 1, 2016.
The Committee has previously advised that, for the purposes of the Rules Governing Judicial Conduct, a judge “assumes office upon taking and filing his/her oath of office” (Opinion 04-137). Indeed, the Committee has advised that, although a full-time judge is not permitted to practice law, an attorney whose nomination to the Court of Claims has been confirmed by the New York State Senate may nonetheless continue to practice law until he/she takes and files the oath of office pursuant to applicable law (see Opinion 98-92 [Vol. XVII]).
Likewise, although Section 100.4(C)(2)(b) prohibits a judge from accepting appointment or employment as a peace officer or police officer, it does not govern the activities of a non-judge who is seeking judicial office by election or appointment (cf. Opinion 07-90; 22 NYCRR 100.6[A]). Thus, the inquirer can easily comply with Section 100.4(C)(2)(b), while avoiding any possible appearance of impropriety (see 22 NYCRR 100.2), simply by waiting until his/her actual retirement date in January 2016 before taking and filing his/her oath of office as a judge (see Opinions 04-137; 98-92 [Vol. XVII]).2
Thus, the inquirer may remain as a police officer while he/she seeks election or appointment to judicial office. If his/her bid succeeds, he/she may continue as a police officer until taking and filing his/her oath of office as a judge. Under these facts, the inquirer should take and file his/her oath of office after he/she retires from the police force in early January 2016.
1 As the Committee has previously observed, “[w]hen a judicial vacancy arises at the end of a judge’s full term of office, or when a judge’s term otherwise ends early by operation of law due to the judge’s age, ... there is no doubt a judicial vacancy will occur as of a certain date” (Opinion 14-178).
2 See Town Law §25, Village Law §3-312(6), and Public Officers Law §§10 and 30(1)(h), concerning oaths of office.