Opinion 10-163

October 28, 2010

Digest:         A part-time judge who owns a small consulting company may provide consulting services to village officials in a neighboring county concerning establishing a village court.

Rules:          Criminal Procedure Law §120.90(3),(4); 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.3(B)(7); 100.4(A)(1)-(3); 100.4(D)(1)(a); 100.6(B)(4); Opinions 08-162; 06-66; 99-128 (Vol. XVIII); 98-163 (Vol. XVII); 96-55 (Vol. XIV); 95-79 (Vol. XIII); 89-19 (Vol. III).

Opinion:

         A part-time judge who owns a small consulting company performs contract work for various entities. The judge asks whether he/she may assist officials in a village in another county "with the process of establishing a village court." The judge states that his/her role would involve "coordinating or working on" the project, drawing on the judge's knowledge of court operations. The village's cases are currently adjudicated in the surrounding town’s court.

         A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary's integrity and impartiality (see 22 NYCRR 100.2[A]). The judge’s judicial duties take precedence over all other activities (see 22 NYCRR 100.3[A]), but a judge may engage in extra-judicial activities that are not incompatible with judicial office and 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 (see 22 NYCRR 100.4[A][1]-[3]). Also, 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 100.2[C]; 100.4[D][1][a]).

         In Opinion 08-162, this Committee, in concluding that a part-time town justice who also is a building contractor may bid on and perform roofing work for a town board member, subject to certain limitations, reviewed and summarized many of its prior opinions on the topic of part-time town or village judges undertaking work for local towns or villages:

         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 where 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 where the judge presides]). 

         Here, the consulting work the inquiring judge wishes to undertake will be performed not for the municipality where the judge presides, but for one located in another county, thus rendering it unlikely the judge would perform judicial duties in a case in the proposed village court (but see Criminal Procedure Law §120.90[3], [4]). Consequently, the Committee concludes that serving as a consultant to a nearby village is not incompatible with the inquirer's judicial office, and that such service is unlikely to conflict or interfere with the proper performance of his/her judicial duties (see Opinion 06-66 [part-time judge may permit his/her family business to market its products to the New York State Unified Court System outside the jurisdiction in which he/she sits, without use of his/her judicial title or status]).