March 13, 1997
A part-time town justice may also serve as the village attorney for a village
within the same town.
22 NYCRR 100.6(B)(4)
Opinions 93-33 (Vol. XI), 90-188 (Vol. VI).
A part-time town justice asks whether that position is incompatible with that of village attorney within the same town. The judge writes that there are two town justices, that the village has only appeared in Town Court on one occasion in the past three years, that the District Attorney or special counsel on behalf of the village would appear in front of the other town justice if there were a local law or zoning violation proceeding that was being brought in the Town Court by the village attorney.
There are apparently opinions of the State Comptroller and Attorney General concerning the legality of holding the positions of town or village justice and village attorney. This Committee takes no position on the questions of law inherent in the issue posed but assumes for the purpose of this opinion that it is legal for a town justice in a second-class town to hold the position of village attorney within the same jurisdiction.
Section 100.6(B)(4) of the Rules Governing Judicial Conduct provides that a part-time judge "may accept private employment or public employment in a federal, state or 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."
Pursuant to that provision, this Committee has opined that it is improper for a part-time judge to be an assistant district attorney in another county (Opinion 90-188 [Vol. VI]) or, if serving as village attorney in an adjoining village, to be designated to serve as a special district attorney to prosecute zoning violations (Opinion 93-33 [Vol. XI]). Those opinions were based on the view that the close relationship between a district attorney and law enforcement officials would create a perception of impropriety. But, with respect to the instant matter, the Committee does not see that there is in inherent incompatibility in the positions of town justice and village attorney so as to preclude the holding of both offices. Of course, before accepting the position of village attorney the judge should advise the village of the need to arrange for special counsel or the district attorney to prosecute cases before the other town judge in matters involving alleged violations of local laws or zoning ordinances.