March 16, 2017
Digest: A part-time judge may also be a full-time academic SUNY employee administering and overseeing a SUNY-hosted police cadet academy.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(B); 100.6(B)(4); Opinions 12-44; 11-83; 06-15; 05-73; 04-118; 98-73; 96-44; 94-74.
A part-time judge asks if he/she may maintain full-time employment with a State University of New York campus, as an academic employee who administers and oversees a SUNY-hosted police cadet academy. The responsibilities include scheduling the academy’s classes and instructors, providing academic testing, managing the academy’s budget, and compiling training records. The position does not require or confer police or peace officer status, although the police academy is overseen by the campus police chief.1 The academy’s classes are divided into two phases. The first phase is open to enrolled SUNY students for academic credit, as well as to police cadets. The second phase is restricted to police cadets, and the faculty are certified police instructors. The judge is not eligible to teach during the restricted second phase but would teach some classes during the open first phase.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may generally engage in extra-judicial activities such as teaching and lecturing (see 22 NYCRR 100.4[B]), and a part-time judge may accept public employment in a state 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” (22 NYCRR 100.6[B]).
The Committee’s prior opinion involving outside employment with a police academy provides little guidance here. In Opinion 04-118, the Committee advised that a secretary for a police academy sponsored by the village police department, who participates in training exercises “in a ‘role playing’ capacity,” may not simultaneously serve as village court clerk (Opinion 04-118). This ongoing “connection with and active participation in the training of the very police officers who will come into the court could readily cause the court’s impartiality to be questioned” (id.). The present inquiry is different in two important respects. First, this police academy is hosted by an academic institution, rather than by the local police agency that appears before the judge. Unlike the prospective court clerk in Opinion 04-118, this judge would be a SUNY employee, rather than a police department employee. Second, the cadets enrolled in the SUNY police academy are not active police officers; indeed, they will not appear in a law enforcement capacity before any court until after graduation (cf. Opinion 94-74 [a part-time judge who teaches high school may not preside over cases involving current students, but may hear cases involving former students provided he/she can be fair and impartial]).
Somewhat closer in spirit to the present inquiry, the Committee has advised that a part-time judge may accept employment as a security officer at a community college, where the judge would not hold statutory peace or police officer status and his/her general security duties would not rise to the functional equivalent of peace officer status (see Opinion 05-73).
The Committee has also recognized that “it may ... benefit the public interest when an organization that is involved in litigating only one side of an issue is exposed to the kind of broad and nuanced perspective that a judge can offer,” even when “a judge’s intended audience consists solely of law enforcement personnel” (Opinion 12-44). Thus, provided the circumstances do not compromise the judge’s apparent or actual impartiality, a part-time judge may teach a Vehicle and Traffic Law class to aspiring police officers at a local community college (see Opinion 98-73); teach a New York State Fire Police training course (see Opinion 06-15); and participate in a panel discussion sponsored by a sheriff’s department explaining the court’s procedures and operations as part of departmental training (see Opinion 96-44).2
Here, the judge would teach classes that are open to both SUNY students and police cadets and would have administrative oversight of the entire SUNY-hosted police cadet academy, including the phase restricted to police cadets. As described, the Committee concludes this employment is not incompatible with part-time judicial office and is not likely to compromise the judge’s apparent or actual impartiality. The proposed employment is therefore permissible.
1 In addition, the police academy’s directors are local police chiefs or county sheriffs.
2 For example, when lecturing to a one-sided audience, the judge “must take particular care that his/her topic will not compromise the judge’s apparent or actual impartiality and does not manifest a predisposition to decide a particular type or class of case a certain way” and “avoid the perception” that he/she is “providing advice on litigation strategy or tactics” (Opinion 12-44, quoting Opinion 11-83).