Opinion 17-173
December 7, 2017
Digest: A part-time judge may not supervise the emergency medical services division in the sheriff’s office in the county where the judge presides.
Rules: CPL 1.20(33); 2.10; Town Law § 31(4); Uniform Justice Court Act § 105(c); 22 NYCRR 100.2; 100.2(A); 100.4(C)(2)(b); 100.6(B)(1); 100.6(B)(4); Opinions 17-125; 16-32; 13-130; 03-118; 01-47; 98-116; 96-39; 95-106.
Opinion:
The inquirer asks if he/she may simultaneously serve as a part-time town justice and captain of the emergency medical services (EMS) division of the sheriff’s office in the same county. The EMS captain holds a civil service position under the sheriff’s authority and supervises nearly 100 paramedics and emergency medical technicians. The position does not confer peace officer or police office status, has “absolutely no law enforcement responsibilities,” and has few, if any, field responsibilities involving interaction with police. However, deputy sheriffs appear as witnesses in the town court in traffic matters, and occasionally bring defendants to the town court for arraignment. The town court has two co-judges.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time judge is exempt from a few restrictions applicable to full-time judges (see NYCRR 100.6[B][1]), and thus may accept public employment if compatible with judicial office, provided it does not interfere with proper performance of judicial duties (see 22 NYCRR 100.6[B][4]). However, a judge must not accept appointment or employment as a peace officer or police officer as those terms are defined in CPL 1.20(33) (see 22 NYCRR 100.4[C][2][b]).
Clearly, employment as a police officer or peace officer is incompatible with judicial office (see e.g. Opinion 96-39 [town justice may not be a Special Deputy U.S. Marshal for the federal court]; CPL 1.20(33); 2.10; Town Law § 31[4]; Uniform Justice Court Act § 105[c]; 22 NYCRR 100.4[C][2][b]). Moreover, extra-judicial employment which creates a perception that the judge is acting in a law enforcement role is likewise impermissible, even if the position does not have police officer or peace officer status (see e.g. Opinions 01-47 [judge may not serve as a court aide akin to a bailiff, wearing a uniform and bearing responsibility for maintaining order and decorum during court proceedings]; 98-116 [judge may not serve as a dispatcher for the local sheriff’s department]; 95-106 [judge may not accept civil service employment as a 911 dispatcher in the same county]; but see Opinion 03-118 [judge may serve as data entry clerk in local sheriff’s office, subject to certain limitations]). A judge also may not accept employment with a law enforcement agency that regularly appears in the judge’s court, as it would require frequent disqualification and thereby interfere with the judge’s judicial duties (see Opinion 13-130 [judge may not serve as pistol permit clerk in local sheriff’s department where, inter alia, the sheriff’s deputies regularly appear in the judge’s court]). Thus, as summarized in Opinion 16-32 (citations omitted):
As to non-attorney positions, the Committee has advised that, if two conditions are met, a part-time judge may enter an employment relationship with a law enforcement agency, such as a sheriff’s office. First, the part-time judge’s responsibilities at the agency should not be, or appear to be, a peace officer or quasi-law enforcement role. Second, the agency should not appear so frequently in the judge’s court so as to interfere with the judge’s judicial duties.
Here, however, we conclude the positions of town justice and EMS captain in the sheriff’s office of the same county are ethically incompatible, even though the position does not confer police/peace officer status and the frequency of appearances is unclear. Significantly, the EMS captain heads a large department and is in a highly visible position within the sheriff’s office, under the authority of the sheriff.1 From a reasonable layperson’s perspective, a judge who serves in this prominent leadership role within the sheriff’s office, “in the very same county where the judge presides, will be perceived as too closely aligned with law enforcement interests” (Opinion 16-32 [judge may not serve as in-house counsel to the sheriff’s office, even if the role “is limited to transactional work and the sheriff’s office seldom appears in the judge’s court”]). The incompatibility of the two offices is not alleviated by the existence of a co-judge who may be able to preside in matters where the inquirer is disqualified. The inquirer must therefore choose between the two positions.
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1 We recently advised that a part-time judge may serve as training director in a city’s independent emergency communications department (see Opinion 17-125). While that, too, is an administrative leadership position, there are significant differences. Here, the EMS captain does not work for an independent agency, but is under the sheriff’s authority. Nor is there any assurance here that the EMS captain supervises an all-civilian staff with no dispatch duties.