September 14, 1999
A part-time town justice may also serve on an occasional basis as town
engineer, and be compensated for such services.
22 NYCRR 100.3(E)(1); 100.4(A)(1), (2) and (3);
Opinions 89-19 (Vol. III); 95-79 (Vol. XIII);
96-55 (Vol. XIV).
A part-time town justice who is also a licensed professional engineer, has been asked by the Town Supervisor and the Town Board to occasionally work as the town engineer. Duties would include preparing specifications for new facilities or for changes to existing facilities. The judge would be compensated at an hourly or daily rate and the services would only be used once or twice per year. The Town Board would contract with independent engineering consultants if necessary, in order to avoid any need for using the town justice as an expert engineering witness should the occasion arise. The judge inquires if there is a conflict between serving as town engineer under the circumstances described while also serving as town justice.
The Rules Governing Judicial Conduct allow a part-time judge to accept public employment in a governmental 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. 22 NYCRR 100.6(B)(4). The Rules also require that any judge, full-time or part-time, conduct his or her extra-judicial activities so that they do not cast reasonable doubt on the judge's capacity to act with impartiality, detract from the dignity of judicial office, interfere with the performance of judicial duties and are not incompatible with judicial office. 22 NYCRR 100.4(A)(1),(2) and (3). In prior opinions, this Committee concluded that it was permissible for a town justice to receive compensation for carpentry work for the Town in connection with Town Court, and, in another instance, for providing certain computer services to the Town. Opinions 95-79 (Vol. XIII); 89-19 (Vol. III). The Committee, however, has also stated that it was inappropriate for a Village Justice who, owns an insurance agency, to bid on the municipality's insurance contracts. Opinion 96-55 (Vol. XIV).
The role of town engineer compensated on an hourly or per diem basis is more akin to that of the carpenter or computer specialist in Opinions 95-79 and 89-19 than that of the insurance agent whose relationship with the municipality is ongoing and involves such matters as bidding (and therefore competing against others) for the award of contracts. We therefore conclude that the roles of per diem town engineer and town justice are not incompatible. In addition, the justice's service as town engineer does not appear to conflict or interfere with the proper performance of the duties of the part-time judge. However, should a matter involving the services rendered by the justice as town engineer come before the justice, there must, of course, be recusal. 22 NYCRR 100.3(E)(1).