June 13, 2000
A part-time town judge may be employed as a laborer by the town highway
department, provided the judge does not preside over any cases involving
the town highway department.
22 NYCRR 100.6(B)(4);
Town Law §60(2)
Opinion of the State Comptroller,
A part-time town judge inquires whether it would be appropriate for the judge to work for the town highway department in light of Opinion #72-326 (1972) of the State Comptroller, which states that "a town justice in a town of the second class should not be employed simultaneously as a laborer for the town highway department." In rendering that opinion, dated June 29, 1972, the Comptroller's office relied on section 60(2) of the Town Law which, at that time, provided for town justices to serve as members of the town board. The Comptroller opined that as a member of the town board the justice was part of the town's management and thus it would be improper for the judge also to be involved as a board member in negotiating labor contracts with the town that would cover the judge's employment as a laborer.
However, section 60(2) of the Town Law was amended in 1976 to exclude town judges from being members of the town board. Therefore, the concern expressed in the Comptroller's opinion is no longer present.
Section 100.6(B)(4) of the Rules Governing Judicial Conduct permits a part-time judge to accept public employment in a municipal department provided "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 does not view employment as a laborer with the town highway department as incompatible or in conflict with judicial service. Accordingly, the Committee is of the opinion that the judge may work for the town highway department, provided that he or she does not preside over any cases involving the highway department.