Opinion 03-95

October 23, 2003

Digest:            A town justice should not serve as a private consultant to the New York State Police reviewing open cases and advising on the use of new forensic technologies to help solve such cases.

Rules:             22 NYCRR 100.2; 100.4(A(1); 100.4(A)(3); 100.6(B)(4). Opinions 95-68 (Vol. XIII); 90-188 (Vol. VI).

Opinion:

            A candidate for the office of town justice, who is presently employed as a private consultant by the New York State Police, inquires whether is it ethically permissible to maintain both offices. The inquirer retired from the New York State Police after 35 years of service. The responsibilities of the consultant include reviewing old open homicide and other major crime files to determine if any new additional forensic scientific technologies could be used to help solve these cases.

            Section 100.6(B)(4) of the Rules Governing Judicial Conduct permits a part-time judge 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 not conflict or interfere with the proper performance of the judge’s duties. 22 NYCRR 100.6(B)(4).

            The Committee has previously advised that a part-time judge may not serve as a District Attorney because the special relationship with law enforcement makes such employment incompatible with judicial office and may create an impermissible appearance of impropriety. Opinion 90-188 (Vol. VI). Similarly, the Committee opined that a town justice should not accept a position with the probation department because of the potential public perception of undue influence. Opinion 95-68 (Vol. XIII).

            We conclude, therefore, that the inquiring judge’s current relationship with the New York State Police may create an impermissible appearance of impropriety (22 NYCRR 100.2), as well as public a perception that might cast doubt on the judge’s impartiality. 22 NYCRR 100.4(A)(1). Accordingly, under the circumstances presented, employment as a private consultant by the New York State Police in incompatible with judicial office. 22 NYCRR 100.4(A)(3).