Opinion 05-150

January 26, 2006

Digest:         Under the circumstances, a part-time judge of a local court with criminal jurisdiction may serve on a County Traffic Safety Board that is advisory in nature, but must consider recusal in court proceedings involving issues and matters that may have been or are likely to be heard before the County Traffic Safety Board.

Rules:          VTL 1197; 22 NYCRR 100.3(E)(1); 100.4(A)(1),(3); Opinions 99-176 (Vol. XVII); 87-28(b) (Vol. I).

Opinion:

         A town justice may accept appointment as a member of a County Traffic Safety Board. It is solely advisory, referring all its recommendations on traffic safety issues to the local county legislature. The county budget permits limited reimbursement for members’ travel expenses. The Board does not receive any funding from fines imposed on defendants by the town courts.

         The Committee finds that the circumstances of this particular extra-judicial activity do not “cast reasonable doubt on the judge’s capacity to act impartially as a judge” nor do they appear to interfere with the proper performance of judicial duties or to be incompatible with judicial office. 22 NYCRR 100.4(A)(1),(3).

         In this regard, it is worth noting that this particular county has not established a “Special Traffic Options Program” which would, pursuant to Vehicle and Traffic Law §1197, be entitled to receive fines and forfeitures imposed for violations of law with respect to driving while intoxicated. Therefore, unlike the situation presented in Opinion 87-28(b) (Vol. I), fines that the judge may impose would not be controlled by the County Traffic Safety Board, thereby eliminating the possibility of a potential conflict of interest.

         However, the Committee recognizes there may be judicial proceedings before the judge relating to facts or issues that are the subject of investigation, consideration, or recommendations by the Board. Having taken a position on such matters as a Board member, the judge must be cognizant of their potential to create a conflict of interest and must be prepared to disqualify him/herself should it appear, in light of that previously expressed opinion, that the judge’s “impartiality might reasonably be questioned.” 22 NYCRR 100.3(E)(1).