Opinion 08-162

September 11, 2008

Digest:         A part-time town justice who also is a building contractor may bid on and perform roofing work for a town board member at his/her private residence as long as the part-time town justice receives reasonable and customary compensation for the work and neither receives nor requests political or other favors in return.

Rules:          22 NYCRR 100.2(A); 100.4(A)(1) - (3); 100.4(D)(1)(a); 100.6(B)(4); Opinions 08-01; 06-66; 99-128 (Vol. XVIII); 98-163 (Vol. XVII); 96-55 (Vol. XIV); 89-19 (Vol. III).

Opinion:

         A town board member has asked a part-time town justice, who presides in the same town where the town board member serves and who also is a building contractor, to submit a price quote for installing a new roof on his/her residential dwelling. Prior to assuming the bench, the judge performed other work for the same town board member. The judge advises that he/she would base his/her price on the regular market value of such work or would submit a competitive bid.

         The judge asks whether it is ethically permissible for him/her to bid on and perform roofing work for a town board member who serves in the same town in which the judge presides.

         Pursuant to the Rules Governing Judicial Conduct, a judge must act at all times in a manner that promotes public 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; detract from the dignity of judicial office; or interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A] [1]-[3]). A part-time judge may engage in private employment that 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]). A judge is, however, prohibited from engaging in financial and business dealings that may reasonably be perceived to exploit the judge’s judicial position (see 22 NYCRR 100.4[D][1][a]).

          The Committee previously has advised that a part-time town justice may provide engineering services to the town in which he/she presides on a per diem basis (see Opinion 99-128 [Vol. XVIII]); may construct an airport hangar for the town in which he/she presides (see Opinion 98-163 [Vol. XVII]); and may perform a small carpentry project for the town in which he/she presides (see Opinion 89-19 [Vol. III]). The judge in each case, was engaging in a one-time or occasional work project for his/her own municipality as opposed to work that would result in an on-going business relationship. It has been the Committee’s view that an on-going business relationship with a judge’s own municipality, unlike a one-time or occasional project, poses a greater risk of creating a conflict of interest or an appearance of impropriety (see Opinions 06-66 [part-time judge should not permit family business to market products in jurisdiction where judge presides where doing so would result in judge’s business and municipality having a continuing business relationship]; 96-55 [Vol. XIV][part-time judge who owns insurance and real estate agency should not bid on providing insurance products and services to village in which the judge presides]).

         The judge herein, therefore, may submit a price bid to the town board member for a new roof on the member’s residence and perform the work if the member approves the bid, provided he/she receives reasonable and customary compensation for the work performed, and neither receives nor requests any political or other favors in return (see Opinion 08-01).