Opinion 09-31

January 29, 2009

Digest:         A part-time town/village justice may not permit the municipality's code enforcement officer to also serve as a court officer in the justice’s court.

Rules:          22 NYCRR 100.1; 100.2; 100.3 (C) (2); Opinions 03-97; 91-54 (Vol. VII).

Opinion:

         A part-time town/village justice asks whether he/she may permit a town constable, who was recently appointed the municipality’s code enforcement officer, to continue serving as a court officer in the judge’s court.

         A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1) 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][2]).

         In concluding that an appearance of impropriety would result should a town/village justice also serve as a code enforcement officer, the Committee, in Opinion 03-97, noted that a code enforcement officer is responsible for determining whether to formally charge individuals with code violations, for filing accusatory instruments in the court and, if necessary, for testifying as a witness during court proceedings. In addition, if no assistant district attorney or municipal attorney were assigned to prosecute alleged municipal code violations, the code enforcement officer would be obligated to do so. The Committee also has concluded that an appearance of impropriety would result should a town/village justice permit a town constable who serves as a court officer in the justice’s court to also prosecute violations of municipal code violations in the same court (see Opinion 91-54 [Vol. VII]).

         The town/village justice in the present inquiry, therefore, may not permit a town constable who was recently appointed as code enforcement officer for the same municipality where the justice presides, to continue to also serve as a court officer in his/her court.