March 11, 1993
Digest: A town justice may not serve as a special prosecutor, by appointment of the district attorney’s office, to prosecute zoning violations in the same county in which the justice’s court is located.
Rules: 22 NYCRR §§100.5(b) and 100.2.
A part-time town justice, who also is employed as a village attorney in an adjoining town located in the same county, asks whether it would be proper for the justice to act as a special prosecutor, by appointment of the district attorney’s office, to prosecute zoning violations in the village where he is the village attorney. The district attorney’s office, in lieu of itself prosecuting such violations, has appointed all village and town attorneys in the county to do so.
A part-time judge’s employment is governed by Section 100.5 (h) the Rules of the Chief Administrator, 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.
In Opinion 90-188, Vol. VI , this Committee concluded that a part-time judge in one county could not also serve as an assistant district attorney in another county because that position is incompatible with judicial office and might create an impermissible appearance of impropriety. 22 NYCRR 100.2. That opinion indicates that service as a district attorney, in distinction to serving as a public defender or as an assistant county attorney (Opinion 88-46, Vol. II), is different because district attorneys have a special relationship with the police and law enforcement authorities. Since the inquiring justice would, in effect, be serving as an assistant district attorney while acting as a special prosecutor, the same proscription applies, and in the instant situation the potential for an appearance of impropriety would be heightened by the fact that the judge would be serving as a prosecutor in the same county where he or she presides.