Opinion 04-124

October 28, 2004

Digest:         A part-time judge who is empowered to refer defendants to a defensive driving program should not hold a financial interest in a commercial entity certified to administer and conduct such a program.

Rules:          22 NYCRR 100.2(B); 100.6(B)(4); Opinions 96-37 (Vol. XIV); 97-47(Vol. XV); 00-06 (Vol. XVIII).

Opinion:

         A part-time judge holds a partnership interest in a commercial entity that provides services under a New York State Department of Motor Vehicles certified insurance reduction and points reduction defensive driving program. The agency administers and provides instructors for the courses and makes a profit from each class given. Judges, including the inquiring judge, have the authority to require defendants to attend these types of programs as a condition of sentence.

         The Rules Governing Judicial Conduct provide that a part-time judge may accept private employment provided that employment is not incompatible with judicial office and it does not conflict or interfere with the proper performance of judicial duties. 22 NYCRR 100.6(B)(4). Thus, the Committee considers it incompatible for a part-time judge to serve as an instructor at one of these programs, even if the programs are offered in counties other than the judge’s county. Opinions 96-37 (Vol. XIV); 97-47 (Vol. XV); 00-06 (Vol. XVIII). The reason is that both a referral or refusal to refer could be perceived as allowing an outside interest to affect the exercise of judgment. 22 NYCRR 100.2(B); Opinions 00-06 (Vol. XVIII).

         We see no distinction between the employment situation and holding an ownership interest. The incompatibility is not cured by not sentencing defendants to this particular program since it deprives those defendants of an option that would otherwise be available. Accordingly, we conclude that the two positions are incompatible.