Opinion 08-184

October 23, 2008

Please Note: At its June 17, 2021 meeting, the Committee reviewed two conflicting lines of opinions and determined that a part-time judge may not serve as a code enforcement officer in any jurisdiction, for the reasons set forth in Opinions 00-04, 03-97, 07-75, 09-31, 09-235 and 17-36, even if alleged code violations do not involve peace officers.  Accordingly, Opinions 08-184 and 14-80 are overruled and Opinion 15-205 is modified to the extent inconsistent with this view. 

Digest:         A town justice may serve as a town code enforcement officer in a municipality other than that in which he/she presides as long as he/she does not have jurisdiction to hear code enforcement matters, that arise in that other municipality, in the court where he/she presides.

Rules:          Jud. Law 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.4(A); 100.6(B)(4); Opinions 09-31; 08-194; 07-75; 05-50; 03-97; 96-39 (Vol. XIV).

Opinion:

         A part-time town justice asks whether he/she may also be employed as a town code enforcement officer for a municipality other than the one in which he is a judge.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities but must minimize the risk of conflict with his/her judicial obligations (see 22 NYCRR 100.4[A]). Therefore, a part-time judge may accept public employment in a municipal department as long as the 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]).

         In Opinion 03-97, the Committee noted that “a town code enforcement officer does not appear to have peace officer or police officer status, and therefore holding such a position would not expressly violate the rules which prohibit a part-time judge from being employed as a police or peace officer... .” Nevertheless, the Committee advised that the positions of town justice and code enforcement officer in the same town are incompatible (id.):

It is clear to us that service as a town code enforcement officer is the functional equivalent of a peace officer because it includes the responsibility to determine whether to charge individuals formally with code violations; the responsibility to file accusatory instruments in his/her own court; and, if necessary, to testify as a witness in the same court. Beyond that, if no assistant district attorney or town attorney is assigned to prosecute the town’s code violation claims, the justice, as code enforcement officer, would be obligated to serve as prosecutor in his/her own court.

Clearly, operating in these two capacities would be inappropriate. It would violate the justice’s obligation to maintain judicial independence and to avoid impropriety and the appearance of impropriety. Indeed, it is fundamental that a sitting justice may not also serve as an accuser, a witness, and a prosecutor in the justice’s own court, even though a co-justice of that court could preside over the matter. 22 NYCRR 100.1; 100.2.

         However, in the present inquiry, the judge seeks to serve as town justice for one town and as code enforcement officer for a neighboring town. While the judge does not so indicate, the Committee assumes for the purpose of responding to the present inquiry that the town court where the judge presides has no jurisdiction to adjudicate code violations committed in the neighboring town. Assuming that is the case, there is no danger that the town justice will be called upon to undertake the incompatible functions of an accuser, witness and/or prosecutor in his/her own court and he/she may serve as town justice for one town and at the same time serve as a code enforcement officer for a neighboring town.

         In light of the present inquiry, the Committee has furthered considered a code enforcement officer’s duties and now concludes that they are not the functional equivalent of the duties a police officer or peace officer performs (see Opinion 03-97). While a code enforcement officer determines whether to formally charge individuals with code violations, files accusatory instruments and, if necessary, testifies as a witness (see id.), he/she does so only with respect to a town or village building code that applies only to structures within the town or village. When compared to the relatively broad scope of responsibilities performed by others who serve in quasi-law enforcement roles (see Opinions 08-194 [town justice may not provide security services to other local municipalities]; 05-50 [town justice may not be Deputy Commissioner of Public Safety for another town]; 96-39 [Vol. XIV] [town justice may not be a Special Deputy U.S. Marshal for the federal courts]), the limited scope of responsibilities of a code enforcement officer has led the Committee to re-consider, in part, its rationale in Opinion 03-97. It is clear that the positions of town justice and town code enforcement officer are incompatible when held by the same individual in the same town. However, the impropriety derives from having the same individual serve as both law enforcement officer and judge in the same court (see 22 NYCRR 100.2) and not, alone, from the nature of the code enforcement officer’s duties. Therefore, Opinion 03-97 is modified to the extent is inconsistent with this Opinion.

         Accordingly, a town justice may not be a town code enforcement officer in his/her own town (see Opinion 03-97) or a town building inspector in his/her own town (see Opinion 07-75) and may not permit the town code enforcement officer to serve as a court officer in his/her court (see Opinion 09-31). However, a town justice may serve as a town code enforcement officer for a neighboring town as long as the town court where the judge presides generally has no jurisdiction to adjudicate code violations committed in the neighboring town.

         The Committee’s opinion is limited only to the ethical propriety of the inquiring judge’s proposed extra-judicial employment, and does not address any questions of law, including statutory construction or the legal compatibility of public offices (see Jud. Law 212[2][1]).