Opinion 22-68

May 5, 2022

Digest:    A part-time town justice may simultaneously serve as an administrative law judge for a town code administrative bureau in the same town.

Rules:     Second Class Cities Law § 19; Village Law § 3-300; 22 NYCRR 100.2; 100.2(A); 100.5(B); 100.6(B)(4); Opinions 20-164; 15-116; 03-96; 88-96.

Opinion:

         The town in which the inquiring part-time judge serves is implementing a town code “administrative bureau” in which an appointed administrative law judge would preside over town code violations. Misdemeanor charges under the town code would remain adjudicated before the town court.¹ The judge asks if it is permissible to simultaneously serve as town justice and as administrative law judge for the administrative bureau.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). As relevant here, a part-time judge may accept public employment in a municipal department or 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][4]).

         We have advised that a part-time village justice may be employed as an administrative law judge for the department of motor vehicles (see Opinion 88-96) and that a part-time city court judge may serve as an administrative law judge hearing Department of Social Services State Central Register review cases (see Opinion 03-96).

         Nothing in the description of the position now contemplated would require a different result. Although we mentioned in Opinion 88-96 that the judge’s jurisdiction as administrative law judge “does not include the county in which the village court lies,” we did not require similar geographic separation in Opinion 03-96. Moreover, the violation accusatory instruments that will be heard by the bureau’s administrative law judge are separate and distinct from the misdemeanor accusatory instruments commenced in the town court.

         Finally, we draw attention to two features of this inquiry that remove it from certain statutory and/or ethics prohibitions that we have recognized in prior opinions (see e.g. Opinions 20-164; 15-116). As the inquiring judge is a town justice, rather than a village justice or city court judge, we need not consider Village Law § 3-300(3) (prohibiting a part-time village justice from serving in both an elective and an appointive village office) or Second Class Cities Law § 19 (“No person shall, at the same time, hold more than one city office.”). Second, as the governmental position in question is appointive, rather than elective, we need not consider the “resign-to-run” rule (see 22 NYCRR 100.5[B]).

         Accordingly, we conclude a part-time town justice may simultaneously serve as an administrative law judge for a town code administrative bureau in the same town. 

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¹ We do not address legal questions, such as the propriety of the town’s actions in apparently divesting the town court of jurisdiction over alleged town code violations.