Opinion 21-173

December 2, 2021

Digest:   A town justice may not accept employment as confidential secretary to the county sheriff, where the court’s calendar includes a substantial number of tickets issued by the sheriff’s deputies.

Rules:    22 NYCRR 100.2(A); 100.3(A); 100.3(E)(1); 100.6(B)(4); Opinion 13-130; 08-145; 08-22; 07-01.

Opinion:

         The inquiring town justice asks if they may hold outside employment as confidential secretary to the county sheriff. The judge says a “good amount” of tickets (i.e., charged Vehicle and Traffic Law offenses) processed through the judge’s court are issued by the sheriff’s deputies, although only one deputy has needed to testify before the judge in the past two years. The secretary works with the sheriff in a confidential capacity but does not supervise or oversee the deputies. The confidential secretary manages the sheriff’s department’s civil division, and in that capacity contacts private attorneys for collection purposes, and contacts employees to have wages garnished.

         The judicial duties of a judge must take precedence over all the judge’s activities (see 22 NYCRR 100.3[A]). A judge thus must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and must disqualify in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). A part-time judge may nonetheless accept public employment in a 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 (see 22 NYCRR 100.6[B][4]).

         When the non-judicial employment may appear to align the judge with law enforcement or defense functions, increased scrutiny is necessary. In our Opinion 07-01, for example, we concluded that a town justice could not serve as a secretary to the state police’s internal affairs bureau, where the town justice’s calendar consisted “almost entirely of traffic cases and criminal complaints filed by New York State Troopers.” We noted the bureau’s responsibilities concerned scrutinizing the work of individual troopers, and the inquiring town justice would be privy to such information out of court. Thus, an appearance of impropriety would be created, rendering the proposed employment inappropriate.

         Along these lines, we have identified two conditions that must be met for a part-time judge to enter into an employment relationship with a law enforcement agency (see Opinion 13-130).

         First, the employment must not involve, or appear to involve, a quasi-law enforcement role (id.). Here, the confidential secretary communicates with private attorneys to collect unpaid fines and contacts the defendants’ employers (if known) for purposes of pursuing garnishment of their wages. We believe this would create, at the very least, an appearance of impropriety for the judge.

         Second, the agency must not appear so frequently in the judge’s court as to interfere with the judge’s duties (see Opinion 13-130; compare Opinions 08-22 [public defender’s five cases per year in the town court would be referred to another agency or assigned counsel]; 08-145 [sheriff’s department “rarely” issued tickets or appeared in the village court] with Opinion 07-01 [town court’s calendar consisted “almost entirely of traffic cases and criminal complaints filed by New York State Troopers”]). Here, it appears the sheriff’s office issues a substantial number of tickets before the court, and thus the proposed employment would unnecessarily interfere with judicial duties.

         Under all the circumstances presented, we conclude that the inquiring judge may not hold the positions of town justice and confidential secretary to the sheriff of the county where the judge’s town is located.