Opinion 05-08

January 29, 2005

Digest          A full-time judge may not appear at a Town Board meeting in the judge’s capacity as a board member of a hospital in support of a proposed expansion project of the hospital.

Rules:          22 NYCRR 100.4(C)(1); Opinion 02-116.

Opinion:

         A full-time judge inquires as follows:

                   May a full-time judge ***, who is a member of

                   the Board of Directors of a local not-for-profit

                   hospital corporation, attend a meeting of the 

                   local Town Board in support of a pending

                   application by the hospital for land use and

                   zoning approvals? If he may attend, may he speak

                   in support of the application under any

                   circumstances, including responding to a direct

                   question from the Town Board?

         The inquiring judge is a member of the Board of Directors of both the hospital and the parent corporation which owns the real estate. Town approvals are required to construct expanded hospital facilities.

         The judge further advises that he/she was formerly a land use attorney, a Corporation Counsel for an adjoining city, and is now known as a judge by the community. In light of the above, the judge expects direct questions if the judge appears and also advises that some controversy may arise about the application.

         In light of the foregoing, it is the opinion of the Committee that pursuant to section 100.4(C)(1) of the Rules Governing Judicial Conduct, the judge should not appear before the Town Board, the Planning Board, or the Zoning Board in connection with the project. Section 100.4(C)(1) states:

(C) Governmental, civic, or charitable activities. (1) a full-time judge shall not appear at a public hearing before an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice or except when acting pro se in a matter involving the judge or the judge’s interests.

         This Committee has previously advised that a judge may, in the judge’s capacity as a private citizen, attend and voice an opinion on zoning matters which affect the judge’s own property Opinion 02-116. This inquiry, however, is materially different. Accordingly, given the clear language of section 100.4(C)(1) of the Rules, coupled with the controversial nature of the project, the Committee concludes that the judge should not appear before the Town Board on the hospital’s application. It likewise seems advisable that in order to avoid having to decline to respond to questions that might be directed to him - and thus possibly create the false impression that he/she has a position one way or the other - the judge need not attend the meeting.