Opinion: 99-166

December 9, 1999

Digest: A judge of a village justice court may grant permission to the clerk of that court to accept an appointment as a State certified police officer in a different locale.

Rule:  22 NYCRR 100.3(C)(2), 100.4(A)(1),
           100.4(C)(2)(b), CPL 1.20(34)(o);
           Opinion 96-64 (Vol. XIV).


            The judge of a village justice court inquires whether the clerk of that court may accept employment as a New York City Department of Environmental Protection police officer. The latter position is defined as a police officer in Criminal Procedure Law 1.20(34)(o) and such sworn officers of the water-supply police have the power to perform all police functions outside the City of New York in the protection of the sources, works and transmission of water supplied to New York City.

            Section 100.3(C)(2) of the Rules Governing Judicial Conduct mandates that a judge "shall require staff, court officials and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge ...." Section 100.4(C)(2)(b) specifies that "[a] judge shall not accept appointment or employment as a peace officer or police officer as those terms are defined in section 1.20 of the Criminal Procedure Law." In addition, section 100.4(A)(1) provides that a judge shall conduct his/her extra-judicial activities so that they do not "cast reasonable doubt on the judge's capacity to act impartially as a judge."

            In Opinion 96-64 (Vol. XIV), it was the Committee's opinion, based on CPL 2.10 and the sections of the Rules cited, that, although not every ethical rule applicable to judges necessarily applies to staff members, it is a cause for concern where the extra-judicial employment of the staff member is one which directly involves the enforcement of local laws over which the court has jurisdiction. Dual employment in that situation would be inappropriate and would cause the judge's impartiality to be reasonably questioned.

            But, in the Committee's opinion, the instant situation is distinguishable from the situation discussed above in that the clerk not only will be stationed outside the jurisdiction of the court, but will be involved in enforcing statutes, regulations and ordinances promulgated by a different municipality. Further, there is not likely to be any appearances as a police officer in the judge's court. There is, therefore, on the facts presented, no reasonable basis for not allowing the clerk to continue serving in that position.