August 30, 2018
This responds to your inquiry (18-92) asking if you may allow a court bailiff to serve also as the town code enforcement officer having the responsibility to issue citations, for violations of town and state codes, which may be heard in the town justice court.
The Committee previously advised a part-time town justice may not permit a municipality’s code enforcement officer to serve also as a court officer in the justice’s court, as it would likely create an appearance of impropriety (see 22 NYCRR 100.2). Though we have advised that a local constable could be a part-time security officer, this can be distinguished as there would likely be few situations where recusal would be required. However, here, we conclude there may be many instances where recusal would be mandated if, as in this case, the code enforcement actions are brought in the justice court.
Enclosed for your convenience, are Opinions 13-131; 09-152; 09-121; 09-31; and 91-54, which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Div,. First Dept (Ret.)
Hon. Margaret T. Walsh
Family Court Judge
Acting Justice, Supreme Court