Opinion 04-107

October 28, 2004

Digest:         An administrative judge of a judicial district may not appoint his/her child, who is a town judge, to the position of acting city court judge in the judicial district.

Rules:          22 NYCRR 100.2; 100.2(B); 100.3(C)(3); Opinion 03-136.

Opinion:

         The inquiring judge is a judicial district administrative judge whose child is a town justice of a court in the district. Eligible town and village justices are occasionally appointed as acting city court judges. There is a particular need for such appointments in two of the cities in the judicial district. Those appointments are made by the inquiring judge, and are done on a rotating basis of those town and village judges who are eligible and available.

         The judge’s child, who is eligible and available, would like to be part of any appointment rotation. To date, the judge has not appointed his/her child, and seeks the Committee’s advice.

         In the opinion of the Committee, the inquiring judge may not appoint his/her child to the position of acting city court judge. To do so would raise a serious question under section 100.3(C)(3) of the Rules Governing Judicial Conduct which, in part, states:

(3) A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of such person for appointment or employment to another judge serving in the same court. A judge also shall comply with the requirements of Part 8 of the Rules of the Chief Judge (22 NYCRR Part 8) relating to the appointment of relatives of judges.

         Also, such an appointment by the inquirer could raise a question under section 100.2(B) of the Rule which prohibits a judge from allowing “family, social, political or other relationships to influence the judge’s judicial conduct or judgment” (22 NYCRR 100.2[B]), thus creating, at the very least, an appearance of impropriety, should the judge make that appointment. 22 NYCRR 100.2.

         This Committee’s Opinion 03-136, referred to by the inquirer, does not alter our view. There, the child of the chief judge of a city court had been elected to the same court, thus raising concerns about the appearance of nepotism and favoritism in the chief judge’s exercise of supervisory authority. Under those circumstances, the Committee held that the chief judge should consult with and seek the approval of the Deputy Chief Administrative Judge in devising and implementing procedures to avoid the appearance of nepotism and favoritism in the parent’s exercise such authority.

         But, that solution is not possible in the present instance for the issue is not the exercise of oversight or supervisory authority, but rather the appointment itself. In Opinion 03-136, it was the voters, not the chief judge, who selected the son to be a judge of the court. Here, it is the parent who is appointing the son to be a judge of the court, in the first place. For the reasons stated above that is not permissible under the Rules Governing Judicial Conduct. Accordingly, the inquirer should not exercise the authority vested in his/her office to appoint the son as a judge of the court.