Opinion 08-113

June 6, 2008

Digest:         A part-time village justice may serve as a paid member of the board of directors of a banking institution in another county.

Rules:         22 NYCRR 100.3(A); 100.4(D)(1)(b)-(c); 100.4(D)(3); 100.6(B)(4); Opinion 07-60; 96-11 (Vol. XIV).

Opinion:

         A part-time town/village justice inquires whether he/she may serve as a paid member of the board of directors of a New York State chartered banking institution. The institution is located in a different county from the judge’s court.

         This Committee has previously determined that a full-time judge may not serve on the board of trustees of a savings bank (see Opinion 96-11 [Vol. XIV]). The rule on which the Committee chiefly relied, however, applies specifically to a “full-time judge” (see 22 NYCRR 100.4[D][3] [full-time judge shall not serve as an officer or director of any business entity]).

         By contrast, a part-time judge “may accept private employment ..., provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]). Although the Committee renders no opinion as to the legal compatibility of the two positions (see Opinion 07-60), the Committee perceives no inherent ethical incompatibility between the office of part-time judge and director of a banking institution.

         Under the circumstances presented, because the inquiring judge presides in a town/village court located in a different county from the banking institution, the Committee infers that the directorship is unlikely to involve the judge frequently “with any business, organization or activity that ordinarily will come before the judge” or “with ... other persons likely to come before the court on which the judge serves” (22 NYCRR 100.4[D][1][b],[c]). If this inference proves incorrect or if the directorship otherwise results in frequent recusals, the judge may not hold both positions (see 22 NYCRR 100.6[B][4] [outside employment must “not conflict or interfere” with proper judicial performance]; cf. 22 NYCRR 100.3[A] [judicial duties of a judge take precedence over all other activities]).