Opinion 06-66

April 27, 2006

Digest:         Under the circumstances, a part-time judge may allow a business which the judge and his/her family owns to market its products to the New York State Unified Court System. In doing so, the judge should not permit the business to market its products in the jurisdiction in which he/she sits, nor may the judge use his/her judicial title or status in any such efforts.

Rules:          22 NYCRR 100.2(C); 100.4(D)(1); Opinions 99-128 (Vol. XVIII); 98-163 (Vol. XVII); 96-55 (Vol. XIV); 89-19 (Vol. III).

Opinion:

         A part-time judge who is the CEO of a substantial manufacturing business of which the judge, the judge’s spouse and their children are sole owners, inquires whether (1) because of his/her partial ownership, the business is prohibited from marketing its products to the New York State courts, and (2) if the marketing is permitted, to what extent he/she personally may be involved in such efforts. The company manufactures office communications equipment.

         Addressing the first inquiry, this Committee concludes that there is no ethical prohibition on the judge permitting this family-owned business from marketing its products to the New York State court system as a whole, as distinguished from engaging in such business activities in the judge’s own municipality. There is, as we view it, a substantial difference between what is contemplated herein and what was before us in situations involving discrete or limited events that did not rise, in scope or duration, to the level of a potential conflict of interest as is contemplated in section 100.4(D)(1) of the Rules Governing Judicial Conduct. See, e.g. Opinions 99-128 (Vol. XVIII)(serving occasionally as a town engineer), 98-163 (Vol. XVII)(building an airplane hanger for the town), 89-19 (Vol. II)(performing carpentry work on a small project not involving public bidding).

         What is involved here, however, is more akin to the factual setting underlying Opinion 96-55 (Vol. XVI), where the Committee advised that a village justice who also owned a local insurance agency should not allow the agency to submit bids to secure village insurance contracts. That is, although not spelled out, it appears that in this instance there would be a continuing business relationship involving the installation, functioning, and servicing of the products sold which would extend beyond a single, finite transaction. Under those circumstances, the potential for a conflict of interest is too great to allow the judge to permit the company to transact business with the town where he/she presides as a judge. This does not mean, however, that the judge must forbid the company from marketing its product to the court system as a whole, or to the system’s constituent courts other than the judge’s.

         Thus, we perceive no apparent conflict of interest where the company transacts business with entities other than the judge’s municipality. To avoid any inference that the judge is exploiting his/her position inappropriately, there should be no mention of the judge’s title or position in any permissible marketing efforts by the company. 22 NYCRR 100.2(C).