Opinion: 01-47

April 19, 2001

Digest:  A part-time judge should not accept employment in the Sheriff's Department as a civilian court aide in County Court

Rule:  22 NYCRR 100.2; 100.6(B)(4);
           Opinions 90-188 (Vol. VI);
           95-68 (Vol. XIII); 98-116 (Vol. XVII).


            A part-time town justice inquires whether it is permissible to be employed by the Sheriff's Department as a civilian court aide serving in County Court. The town where the judge presides is located in the county. The judge states that the position would be without peace or police officer status, and that he/she would not have to "work" any case in county court, in which there had been any previous involvement as town justice.

            A part-time judge's employment is governed by section 100.6(B)(4) of the Rules Governing Judicial Conduct, which provides (22 NYCRR 100.6[B][4]):

A part-time judge may 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.

            In applying that provision, the Committee has previously concluded that certain positions are incompatible with judicial office in that the simultaneous holding of both positions would create an appearance of impropriety in light of the apparent connection with law enforcement functions. 22 NYCRR 100.2. See, e.g., Opinion 90-189 (Vol. VI) [part-time judge may not serve as an assistant district attorney in an adjoining county]; Opinion 95-68 (Vol. XIII) [town justice should not be employed by the county probation department]; Opinion 98-116 (Vol. XVII) [part-time judge should not be employed as a dispatcher for Sheriff's Department].

            The Committee presumes that as a court aide the judge would be present in the County Court in a capacity similar to that of a bailiff, or court attendant, wearing a uniform and having responsibility for maintaining order and decorum in the course of court proceedings. The public may well perceive the judge to be in a law enforcement role, despite the lack of a formal designation as a police or peace officer. Further, the fact that the judge would be in an employment relationship with the Sheriff's Department presents an additional problem because the judge undoubtedly presides over criminal and traffic cases filed in the judge's court by members of the Sheriff's Department. See Opinion 98-116 (Vol. XVII). Consequently, such dual employment creates an appearance of impropriety in violation of section 100.2 of the Rules. Accordingly, the Committee regards employment with the Sheriff's Department as a court aide incompatible with judicial office because of the potential public perception of undue influence by the Sheriff's Department over the judge and the inherent conflict of a judge serving in a law enforcement role.