Opinion 10-190

December 9, 2010

Digest:         A town justice-elect who serves on the board of the town where he/she will preside and who voted on legislation amending and promulgating town laws and ordinances and on the initial appointment and subsequent annual reappointments of the town attorney is not required to disqualify him/herself when the town attorney appears or when such town laws and ordinances are the subject of cases before him/her.

Rules:          22 NYCRR 100.2; 100.2(C); 100.3[E][1]; Opinions 93-40 (Vol. XI); 91-04 (Vol. VII); 88-52 (Vol. II).

Opinion:

         A town justice-elect serves on the board of the town where he/she will preside. In that capacity, he/she voted on legislation amending and promulgating town laws and ordinances and on the initial appointment and subsequent annual reappointments of the town attorney who represents the town in the town court. Also, the town justice-elect advises that the town board presently is conducting a comprehensive review of the municipal dog control statute. He/she voted to hold a public hearing about any proposed changes but will abstain from any votes that may take place before he/she leaves the town board to assume judicial office. The town justice-elect asks whether he/she must disqualify him/herself when the town attorney appears or when any statutes that he/she voted on are involved in proceedings in his/her court.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must not convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). Therefore, a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee previously has advised that a judge may preside in cases when the attorney for the municipality where the judge sits appears in the judge’s court as long as he/she can be impartial (see Opinion 93-40 [Vol. XI] [town justice may preside in a criminal case in which the defense attorney also is the town attorney for the same town that employs the justice]; Opinion 91-04 [Vol. VII][no inherent conflict where both the judge and the city attorney are employees of the city]; Opinion 88-52 [Vol. II] [no disqualifying relationship where acting village justice and part-time village attorney are both employees of the village absent particular circumstances indicating a personal bias)]. In the Committee’s view, the fact that the inquiring judge-elect voted to appoint the town attorney who will appear in the judge-elect’s court on the town’s behalf and on statutes and ordinances that will be the subject of matters that come before him/her does not warrant a different result, unless he/she believes that he/she cannot be impartial.