September 10, 2009
Digest: A village justice may not permit his/her part-time court officer to serve simultaneously as the village code enforcement officer.
Rules: 22 NYCRR 100.1; 100.2; 100.2(A); 100.3(C)(2); Opinions 09-121; 09-31; 08-105; 91-54 (Vol. VII).
A village justice asks whether he/she may continue to employ a part-time court officer who recently was hired as the village’s code enforcement officer. The judge advises that the code enforcement officer “issues violations, files accusatory instruments and would testify, if necessary, at trial.” However, the judge further advises that the village attorney, not the code enforcement officer, prosecutes all code enforcement matters for the village and conducts all defendant conferences in such matters. The judge also advises that he/she does not recall a single ordinance enforcement trial during his/her 18 years serving the court. And, according to the judge, he/she would not permit the court officer to act as a prosecutor and if any code enforcement matter requires a trial, the judge would transfer it to another court.
A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1), must avoid impropriety and the appearance of impropriety (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). In addition, a judge must require court staff and others subject to the judge’s direction and control to observe the same standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C]). Nevertheless, the limitations on the extrajudicial conduct of a judge do not automatically apply to the judge’s staff (see Opinion 08-105).
The Committee previously has advised that a part-time town/village justice may not permit the municipality’s code enforcement officer to also serve as a court officer in the justices’ court where the officer is responsible for determining whether to formally charge individuals with code violations, for filing accusatory instruments in the court, for testifying as a witness during court proceedings, and possibly acting as the prosecutor (see Opinions 09-121; 09-31; 91-54 [Vol. VII]) as it would create an appearance of impropriety. This is true even where there is a municipal attorney available to prosecute code violations on the municipality’s behalf and that relatively few code violation cases are filed in the judge’s court (see 09-121).
The facts in the present inquiry do not warrant a different result.