Opinion 10-23

March 10-11, 2010

Digest:         A judge whose spouse is the confidential secretary to the sheriff may preside over cases involving the sheriff's department, as long as the judge can be impartial and discloses his/her spouse’s employment relationship.

Rule:           Judiciary Law 212(2)(l); 22 NYCRR 101.1; 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(d)(iii); Opinions 93-28 (Vol. XI); 90-53 (Vol. V); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A judge asks whether his/her spouse may accept the position of confidential secretary to the local sheriff, “an administrative position within the department at the highest level.”

         Pursuant to Judiciary Law §212(2)(l), the Chief Administrator of the Courts established the Advisory Committee on Judicial Ethics to issue advisory opinions to judges and justices of the unified court system concerning their own ethical conduct (see Judiciary Law §212[2][l]). Therefore, the Committee cannot advise as to the propriety of a judge’s spouse’s conduct. However, the Committee may advise the inquiring judge as to the effect on his/her judicial responsibilities should his/her spouse accept the position of confidential secretary to the local sheriff (see 22 NYCRR 101.1).

         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]). Therefore, a judge cannot allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in any proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), including where the judge’s spouse has an economic or other interest that might be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c], [d][iii]).

         The Committee previously has advised that a judge need not disqualify him/herself when a district attorney’s office or a law enforcement agency that employs the judge's spouse in a clerical capacity appears in the judge’s court (see Opinions 93-28 [Vol. XI]; 90-53 [Vol. V]) ). For example, where a judge's spouse is secretary to the chief of the narcotics bureau in a district attorney's office, the judge may preside over narcotics cases so long as the judge believes that he/she can be impartial and discloses his/her spouse’s employment, unless the judge’s spouse offers evidentiary information regarding a proceeding, is likely to be a material witness, has a financial interest in the outcome of the matter, or is a party or attorney to the proceeding (see 22 NYCRR 100.3[E][1][c], [d]; Opinion 93-28 [Vol. XI]). Similarly, where a judge's spouse holds a minor clerical position as a receptionist in the local police department that would not be substantially affected by the outcome of any proceeding involving the police department, the judge need not disqualify him/herself in criminal cases where local police officers appear as witnesses(see 22 NYCRR 100.3[E][1][c]; Opinion 90-53 [Vol. V]).

         Therefore, the inquiring judge may preside over matters involving the sheriff's department, even if his/her spouse is the confidential secretary to the sheriff, as long as the judge can be impartial and affirmatively discloses his/her spouse's employment. If there is an objection following such disclosure, disqualification is entirely within the judge's discretion (see People v Moreno, 70 NY2d 403 [1987]).