Opinion 15-205


December 3, 2015

 

Digest:         (1) A part-time judge must not serve as Corporation Counsel if the judge personally, or any assistant or deputy corporation counsel under his/her supervision, will prosecute vehicle and traffic law charges, or any other alleged violations of law that involve peace officers. (2) The judge may serve as Corporation Counsel for a city in another county if he/she is completely separated from such prosecutorial responsibilities, for example if the city arranges for special counsel or the district attorney to prosecute such matters so that they are not under the control of the Corporation Counsel.

 

Rules:          22 NYCRR 100.1; 100.2; 100.2(A); 100.4(G); 100.6(B)(1)-(4); Opinions 15-58; 15-09; 14-172; 14-18; 13-180; 13-66; 09-235; 09-159; 08-184; 07-209; 07-163; 06-98; 01-125; 01-20; 97-24; 96-03; 93-33; 92-108.


Opinion:


         A part-time city court judge asks whether he/she may accept employment as the Corporation Counsel for a city located in another county. As the Corporation Counsel, the judge would provide legal advice to the City Council, negotiate labor agreements, and assist in handling traffic infractions and city code violations. If the judge may not personally participate in prosecuting traffic tickets and city code violations, the judge further asks whether he/she may have a deputy corporation counsel handle those duties. The judges states that all city court judges in the other city are part-time judges, but emphasizes the city is in a different county from the judge’s court.


         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time judge may accept public employment in a municipal department or agency, provided such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge's duties (see 22 NYCRR 100.6[B][4]). A part-time judge, unlike a full-time judge, may practice law, albeit subject to certain limitations (see 22 NYCRR 100.4[G]; 100.6[B][1]-[3]). For example, a part-time judge must not practice law in the court on which the judge serves, or in any other court in the county in which his/her court is located, before a judge who is permitted to practice law (see 22 NYCRR 100.6[B][2]).


         The Committee has advised that a part-time town justice may serve as a part-time deputy corporation counsel in the same county, where the position “involves primarily the defense of negligence claims against the city, requiring your appearance in Supreme Court ... and Federal Court” (Opinion 09-159). Notably, the judge would have no prosecutorial responsibilities, and would not appear before other part-time attorney judges in the same county (see id.). A part-time city court judge also may accept an engagement as independent counsel to the city, where the judge will conduct certain legal work on “matters which are not under the control of the City Corporation Counsel” (Opinion 96-03). In either circumstance, the judge is disqualified from matters involving the city (see Opinions 09-159; 96-03).

 

         The Committee has also advised that a town justice may serve as a code enforcement officer for a different town (see Opinions 14-18; 08-184), relying expressly on “the limited scope of responsibilities of a code enforcement officer” as compared with “the relatively broad scope of responsibilities performed by others who serve in quasi-law enforcement roles” (Opinion 08-184).


         Otherwise, a part-time judge “cannot simultaneously hold a position that requires him/her to prosecute offenses” (Opinion 09-235). The prohibition applies even if the prosecutorial position is “in another county” and “in a different judicial district and Appellate Division Department from that of the judge’s court” (Opinion 01-20). Thus, a judge may not serve as an assistant district attorney (see id.) or village prosecutor (see Opinion 92-108) and “cannot be a town justice for one town and town attorney for a different town unless he/she is relieved of his/her prosecutorial responsibilities” (Opinion 09-235; see also Opinion 13-180). Similarly, a part-time city court judge may concurrently serve in the non-supervisory position of full-time deputy county attorney, only if he/she is not required to perform quasi-prosecutorial duties, such as handling juvenile delinquency and persons-in-need-of-supervision cases (see Opinion 15-09; see also Opinion 06-98). As the Committee explained (Opinion 15-09 [citations and footnote omitted]):

 

[A] town justice who is permitted to practice law may serve as a full-time or part-time county attorney or assistant county attorney, provided such position does not involve quasi-prosecutorial duties, and further provided that the judge does not need to disqualify him/herself too frequently. The Committee therefore sees no impropriety in a part-time judge performing general legal work for the county, such as drafting and negotiating contracts or providing legal advice to the county legislature and administration as a member of the County Attorney’s office.

 

Of particular relevance here, the Committee has advised that “while there is no per se incompatibility between the positions of assistant county attorney and town justice, there is a conflict if the responsibilities of the assistant county attorney position involve quasi-prosecutorial duties, such as handling juvenile delinquency and persons-in-need-of-supervision cases.” Accordingly, the Committee advised “a judge should not be in the position of prosecuting such cases,” and, therefore, a part-time judge “should not serve as an assistant county attorney if such service would require him or her to be involved in such cases.”


         Likewise, the Committee believes that a part-time judge may serve in a non-supervisory position as an assistant corporation counsel for a city in another county, provided he/she does not personally participate in prosecuting traffic infractions or otherwise engage in prosecutorial or quasi-prosecutorial duties (see e.g. Opinions 15-09; 13-180; 09-235). With respect to city code violations, the Committee understands that some cities have authorized individuals who do not have peace officer status to enforce some or all provisions of the city code. In the Committee’s view, there is no impropriety for a part-time judge to prosecute city code violations, provided that no police or peace officers are involved in the prosecution. That is, to avoid the impermissible appearance of “a special relationship with the police and law enforcement authorities” (Opinion 93-33; see also Opinions 13-66; 07-163), a judge may not prosecute city code offenses if this requires working with individuals who have police or peace officer status (see generally CPL §§ 1.20; 2.10). Only when an individual who does not have peace officer status issues a notice of violation or appearance ticket for a city code violation may a judge be personally involved in prosecution of the violation.


         Here, of course, the judge wishes to serve as the Corporation Counsel, who is the counsel of record on all matters involving the office, and who ordinarily has supervisory authority over all assistant corporation counsel and/or deputy corporation counsel in the office (see Opinion 01-125 [“The fact that designated assistant corporation counsel is the attorney who is physically present in courtroom is of no significance since the Corporation Counsel is the attorney of record and such appearances are made in the name of the Corporation Counsel.”]; see also e.g. Opinions 15-58 [“the District Attorney is the attorney of record for all cases filed by his/her office, and all of the assistant district attorneys are answerable to him/her”]; 14-172 [judge who formerly served as the municipal attorney is disqualified “from any cases in which you were personally involved or served as the attorney of record”]). In the Committee’s view, this judge must not serve as Corporation Counsel if the judge personally, or any assistant or deputy corporation counsel under his/her supervision, prosecutes vehicle and traffic law violations, or any other alleged violations of law that involve peace officers.


         However, the judge may serve as Corporation Counsel if he/she can be completely separated from the prosecutorial responsibilities of the office, such as if the city arranges for special counsel or the district attorney to prosecute such matters so that they are not under the control of the Corporation Counsel (see e.g. Opinions 07-209 [town attorney may serve as village attorney for village located within the town, where both municipalities maintain justice courts and “the village employs a separate village prosecutor”]; 97-24 [before accepting the position of village attorney the judge should advise the village of the need to arrange for special counsel or the district attorney to prosecute cases before the other town judge in matters involving alleged violations of local laws or zoning ordinances”]). It is essential that neither the judge, nor any assistant or deputy corporation counsel subject to the judge’s supervision, will prosecute vehicle and traffic law charges, or any other alleged violations of law that involve peace officers. As previously noted, the judge and his/her subordinates may prosecute city code violations that do not involve peace officers, such as when the individual who issued the notice of violation or appearance ticket does not have peace officer status.


         Finally, a judge who serves as Corporation Counsel is disqualified from any matters involving that city as a party (see Opinions 09-159; 96-03). The Committee notes that the prohibition on appearing before other part-time judges who are permitted to practice law applies only within the same county (see 22 NYCRR 100.6[B][2]).