January 19, 1995
Please Note: Opinion 18-76 states: “We overrule Opinion 95-06 as it suggests a part-time judge may be a fire investigator in the county where he/she presides.” Accordingly, please review Opinion 18-76 and later opinions for the Committee’s current views.
Digest: A part-time Town Justice may serve on a County Fire Cause and Origin Investigative Team that assists the Fire Chief within the County to determine the cause and origin of a fire, assuming that the position is not that of a peace officer and the judge remains subject to the proper performance of all judicial duties.
Rules: 22 NYCRR 100.4, 100.4(c); 100.5(h); Opinions 88-114, 90-167
A part-time lay Town Justice inquires whether he or she may serve on a Fire Cause and Origin Investigative Team presently being formed by the County Fire Co-ordinators Office. The purpose of the team, when needed, is to assist the Fire Chiefs within the County to determine the cause and origin of a fire. In the event the cause is determined to be of suspicious nature, an official law enforcement organization is immediately called in to take over. The judge states there is a remote possibility of being summoned as a witness.
Assuming that the position on the Fire Cause and Origin Investigative Team is not that of a peace officer, the judge may serve on such a team provided he or she gives priority to the performance of judicial duties and there is recusal from hearing any case in which the fire team is involved.
The activity is otherwise permissible under section 100.5(h) of the Rules of the Chief Administrator which states that part-time judges may accept public or private employment 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. No judge shall accept employment as a peace officer as that term is defined in Section 1.20 of the Criminal Procedure Law. "