Opinion 07-204

September 11, 2008

Digest:         A part-time town justice may also serve as the appointed assessor for the same municipality in which he/she presides, but must disqualify him/herself in any proceeding in which his/her impartiality might reasonably be questioned, including where the town appears in his/her court as a party. Such disqualification may be subject to remittal.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E); 100.3(E)(1)(d)(ii); 100.3(F); 100.4(A)(1),(3); 100.6(B)(4); Joint Opinion 08-58/08-66; Opinion 98-113 (Vol. XVII); 90-14 (Vol. V); Joint Opinion 88-17(b)/88-34 (Vol. II).

Opinion:

         A part-time town justice-elect also is the appointed assessor for the same town in which he/she will preside. The town justice-elect asks whether he/she may simultaneously hold the positions of town justice and appointed assessor for the same municipality.

         Pursuant to the Rules Governing Judicial Conduct, a judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes the public’s confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities that do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, that do not interfere with the proper performance of judicial duties, and that are not incompatible with judicial office (see 22 NYCRR 100.4[A] [1], [3]). A judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]). Part-time judges may accept public employment that is not incompatible with judicial office and that does not conflict or interfere with the proper performance of their judicial duties (see 22 NYCRR 100.6[B][4]). Nevertheless, the judicial duties of a judge take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]).

         In Opinion 98-113 (Vol. XVII), the Committee advised that a part-time town justice may also serve as part-time assistant to the assessor for the same municipality where the judge presides. In the Committee’s view, it appeared unlikely that issues arising in the assessor’s office would come before the town court. However, the Committee advised that the part-time town justice must exercise recusal in any case where an appearance of impropriety could arise as a result of the judge holding both positions (see id.). And, in Opinion 90-14 (Vol. V), the Committee advised that a part-time town justice may also serve as a member of a board of tax assessment review for the same town in which he/she presides. Holding such dual positions is permissible as appeals from the board’s decisions are heard by a state-appointed hearing officer and are never reviewed in the judge’s court (see id.).

         The part-time town justice-elect in the present inquiry, therefore, may simultaneously serve as town justice and as the appointed assessor in the same municipality where he/she presides, but must disqualify him/herself in any proceeding where his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).

         Pursuant to the Rules Governing Judicial Conduct, a judge’s impartiality might reasonably be questioned when the judge is an officer of a party. As the town assessor, the inquiring town justice-elect is also an officer of the executive branch of town government, and, therefore, cannot preside when the town appears in his/her court as a party (see 22 NYCRR 100.3[E][1][d][ii]).¹

         The Rules Governing Judicial Conduct provide for remittal of disqualification except in certain specified circumstances (see 22 NYCRR 100.3[E], [F]). Therefore, if permitted, the inquiring judge may disclose the basis for his/her disqualification and, if the parties who have appeared and not defaulted and their lawyers, without the judge’s participation, all agree on the record that the judge should nevertheless preside, and the judge believes he/she will be impartial and is willing to participate, the judge may participate in the proceeding (see id.). Absent an agreement to remit his/her disqualification, however, the judge must recuse him/herself from the proceeding.

         If holding both the appointed office of town assessor while also serving as town justice requires the judge to exercise recusal so frequently that doing so interferes with his/her ability to perform his/her judicial duties, the judge cannot continue to hold both offices (see 22 NYCRR 100.3[A]; Joint Opinion 08-58/08-66).

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         ¹ For example, the town is a party where the town police department prosecutes a traffic offense, where the town prosecutes building code violations and violations of the Agriculture and Markets Law, and where the town is a party plaintiff or defendant in a civil action commenced in the town court (see e.g. Joint Opinion 88-17[b]/88-34 [Vol. II]).