Opinion 09-222

December 3, 2009

Digest:         A town justice-elect who, when he/she takes office, will have been retired for more than two years after thirty-one years of employment by the police department for the same town where he/she will preside, may adjudicate matters involving the same police department as long as the judge had no personal involvement in the matter before him/her and the judge can be impartial.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3; 100.3(E)(1); 100.3(E)(1)(a)(i), (ii); 100.3(F); Opinions 09-139; 07-23; 03-133; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A town justice-elect who, when he/she takes office, will have been retired for more than two years after thirty-one years of employment by the police department for the same town where he/she will preside asks whether he/she may adjudicate cases involving the town's police department.

         A judge must avoid impropriety and the appearance of impropriety (see 22 NYCRR 100.2), 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]), and perform the duties of judicial office impartially and diligently (see 22 NYCRR 100.3). Therefore, a judge must disqualify him/herself in a proceeding in which the judge's impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), including in matters where the judge has a personal bias or prejudice concerning a party (see 22 NYCRR 100.3[E][1][a][i]) or has personal knowledge of disputed evidentiary facts concerning the proceeding (see 22 NYCRR 100.3[E][1][a][ii]). Remittal of disqualification, otherwise often available, is specifically prohibited when a judge must disqualify him/herself on the basis of a personal bias or prejudice concerning a party (see 22 NYCRR 100.3 [F]).

         The Committee previously has advised that a judge who had formerly served as chief of police of a police department for the same town in which the judge presides must disclose his/her prior employment and disqualify him/herself from all matters involving the police department that were pending as of the date the judge left such employment (see Opinion 03-133). In the Committee’s view, because the chief of police is ultimately responsible for the actions and conduct of the officers under his/her command, the chief of police is “involved” in all cases the department handles. Therefore, he/she must disqualify him/herself from all cases that were pending with the police department on the date he/she left such employment (see id.).

         However, the present inquirer did not serve as chief of the police department and was not involved in vehicle and traffic matters. Therefore, as is the case with former assistant district attorneys and other non-supervisory government employees, the inquirer may preside over and adjudicate cases involving the town's police department as long as he/she had no personal involvement with the matter before him/her (see e.g. Opinions 09-139; 07-23) and as long as the judge can be impartial (see 22 NYCRR 100.3[E][1]; People v Moreno, 70 NY2d 403 [1987]).