Opinion 09-17

January 29, 2009

Digest:         A Family Court Support Magistrate may not serve as a member of a Town Planning Board.

Rules:          Town Law §271(14)(b); 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.6(A); Opinions 09-70; 03-80.

Opinion:

          A Family Court Support Magistrate asks whether he/she may serve as a member of a Town Planning Board.

         The Committee previously has advised that a support magistrate performs judicial functions within the judicial system and, therefore, is subject to the Rules Governing Judicial Conduct (see 22 NYCRR 100.6[A]; Opinions 09-70; 03-80).

         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 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 (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). However, a full-time judge is prohibited from accepting appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][2][a]).

         According to Town Law §271(14)(b), town planning boards “review and make recommendations on... proposed town comprehensive plan[s] or amendment[s] thereto... [and] have full power and authority to make investigations, maps, reports, and recommendations in connection therewith relating to the planning and development of the town as it seems desirable... .” As these responsibilities involve issues of fact and policy in matters other than the improvement of the law, the legal system, or the administration of justice, a Family Court Support Magistrate may not accept appointment to a town planning board (see 22 NYCRR 100.4 [C] [2] [a]).