Opinion 02-116

October 24, 2002

Digest:         (1) A full-time judge may speak about a proposed zoning change at various public forums but only as to the effect of the proposed zoning change on the judge’s property, and only in the judge’s individual capacity as a property owner. (2) A judge may contribute to a fund to secure legal representation for the judge’s neighborhood concerning a proposed zoning change, but must exercise recusal if, during such representation, the attorney for the judge’s neighborhood appears in the judge’s court.

Rule:            22 NYCRR 100.2; 100.3(E)(1);100.4(C)(1); Opinions 92-21 (Vol. IX); 90-122 (Vol. VI).

Opinion:

         A judge asks if it is ethically permissible for the judge to speak about a proposed zoning change that will affect land that is within two blocks of the judge’s personal residence (1) at a neighborhood meeting; (2) at a public hearing before the planning commission or zoning board; and (3) before the common council of the city in which the land is located. The judge also asks whether he/she may contribute to a fund to secure legal representation for the judge’s neighborhood concerning the proposed zoning change.

         While a full-time judge is limited in making appearances at a public hearing before an executive or legislative body or official, a judge may act pro se in a matter involving the judge or the judge’s interests. 22 NYCRR 100.4(C)(1). In Opinion 92-21 (Vol. IX), this Committee concluded that a judge who owns property may attend a Planning Board meeting to voice an opinion on the rezoning of another piece of commercial property located near the judge’s properties, but only as the rezoning would affect the judge’s property, and only in the judge’s individual capacity as a property owner.

         Similarly, the judge in the present inquiry also may speak about a proposed zoning change at each of the forums mentioned, but only as to the effect of the proposed zoning change on the judge’s property, and only in the judge’s individual capacity as a property owner. The judge must not appear as an advocate for or advisor to the neighborhood group, or as a representative attempting to influence the opinions of others in attendance at the meetings.

         The judge also may contribute to a fund to secure legal representation for the judge’s neighborhood concerning the proposed zoning change. See, Opinion 90-122 (Vol. VI). The judge should, however, exercise recusal if, during such representation, the attorney for the judge’s neighborhood appears in the judge’s court. 22 NYCRR 100.2; 100.3(E)(1).