Opinion 08-15

January 31, 2008

Digest:         A part-time judge may work for the Department of Environmental Conservation and perform flood control tasks, but is disqualified, subject to remittal, from any matter involving the Department, including when the Department’s attorneys or law enforcement officers appear before him/her. Remittal is not available if the judge, inter alia, is a party to the proceeding, is a material witness to the facts, or has a personal bias or prejudice concerning a party.

Rules:          22 NYCRR 100.3(E)(1); 100.3(E)(1)(b)(iii); 100.3(E)(1)(d)(i); 100.3(F); 100.6(B)(4); Opinions 00-62 (Vol. XIX); 96-34 (Vol. XIV); 88-148 (Vol. III).

Opinion:

         A part-time judge works for the New York State Department of Environmental Conservation and is responsible for flood control work such as mowing areas on or near levees, boat launches, and some state forest land and running heavy equipment. At other times, the judge may be assigned to work on a special project in any area of the Department’s jurisdiction. The judge asks whether he/she is disqualified from presiding in any cases involving that Department.

         A part-time judge may accept public employment in a state agency, 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 (see 22 NYCRR 100.6(B)(4). This Committee concludes that the maintenance position described here does not inherently conflict with the inquirer’s judicial position and thus is ethically permissible.

         The judge is disqualified, however, from presiding in any case involving the Department of Environmental Conservation, including cases where the Department’s attorneys or law enforcement officers appear (see 22 NYCRR 100.3[E][1]; Opinions 00-62 [Vol. XIX]; 96-34 [Vol. XIV]; 88-148 [Vol. III]). Such disqualification is subject to remittal (see 22 NYCRR 100.3[F]). Consequently, if the judge discloses the basis for his/her disqualification and 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 not be disqualified, and the judge believes that he or she will be impartial and is willing to participate, the judge may participate in the proceeding (see id.). In most instances, if the parties agree to remit the disqualification, the judge may preside. However, if the judge is a party to the proceeding (see 22 NYCRR 100.3[E][1][d][i]), is a material witness to the facts (see 22 NYCRR 100.3[E][1][b][iii]), has a personal bias or prejudice concerning a party (see 22 NYCRR 100.3[E][1][a][i]), or has served as a lawyer in the matter or controversy (see 22 NYCRR 100.3[E][1][b][i]) remittal is not available, and the judge must recuse him/herself from the proceeding.