Opinion 08-56

April 24, 2008

Digest:         A part-time judge may be employed as a mechanic with the New York State Office of Parks, Recreation and Historic Preservation. The judge is disqualified from presiding in proceedings involving fellow employees of the agency’s regional office, subject to remittal. The judge is not disqualified, however, from presiding in matters involving the New York State Park Police.

Rules:          Public Officers Law §74; 22 NYCRR 101.1; 100.1; 100.2(A); 100.3(E)(1); 100.3(F); 100.6(B)(4); Opinions 08-31; 08-30; 08-15; 00-62 (Vol. XIX); 92-09 (Vol. IX).

Opinion:

         A part-time judge who also is employed as a mechanic with the State Office of Parks, Recreation and Historic Preservation asks if he/she is disqualified in all actions involving the agency, its employees, or State Park Police officers. The judge received a letter from an administrator of the agency advising the judge that, pursuant to §74 of the Public Officers Law:

[Y]ou should recuse yourself from cases where either [Office of Parks, Recreation and Historic Preservation] property is at issue or where you are aware that an [Office of Parks, Recreation and Historic Preservation] employee may have a role to play in the adjudication. This would include, for example, situations where State Park Police Officers write a ticket for a violation that occurred either on [Office of Parks, Recreation and Historic Preservation] property or off [Office of Parks, Recreation and Historic Preservation] property.

         The judge states that there are two State Parks located within the geographic jurisdiction of his/her court, but that he/she works as a mechanic for the agency outside the geographic jurisdiction of his/her court. The judge also advises that he/she does not service Park Police vehicles.

         Pursuant to the Rules Governing Judicial Conduct, a part-time judge may accept private employment or public employment in a federal, state, or municipal department or agency, provided the 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]). In the Committee’s view, the inquiring judge’s employment as a mechanic with the Office of Parks, Recreation and Historic Preservation is not incompatible with judicial office, from a judicial ethics perspective, and neither conflicts with nor interferes with the proper performance of the judge’s judicial duties (see id.).

         Nevertheless, to avoid even the appearance of impropriety, or circumstances that might cast doubt on the judge’s ability to be impartial, the judge should disqualify him/herself in any proceeding involving other employees of the regional office of the agency that employs the judge as a mechanic (see 22 NYCRR 100.1; 100.2[A]; 100.3[E][1]; Opinions 08-15; 00-62 [Vol. XIX]; 92-09 [Vol. IX]). Such disqualification is, however, subject to remittal. Therefore, if the judge discloses on the record 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 nevertheless preside, and the judge believes he/she will be impartial and is willing to participate, the judge may participate in the proceeding (see 22 NYCRR 100.3[F]). Absent remittal, the judge is disqualified.

         The Committee, however, sees no need for the judge to disqualify him/herself when an officer from the Park Police appears in the judge’s court. It is the Committee’s understanding that the command structure and administrative hierarchy of the Park Police is distinct from the regional and managerial operations of the Office of Parks, Recreation and Historic Preservation; and the judge’s employment with the agency has no apparent connection with any law enforcement function. In the absence of any co-employee relationship with Park Police officers, there would be no ethical impropriety that would require the judge’s disqualification when such officers appear in the judge’s court (see 22 NYCRR 100.2[A]; 100.3[E]).

         The legal question concerning the application of §74 of the Public Officers Law is beyond the Committee’s jurisdiction (see 22 NYCRR 101.1; Opinions 08-31; 08-30). The inquiring judge, therefore, may wish to obtain an opinion from the New York State Attorney General’s office concerning the application of that statute.