Opinion 11-22

April 28, 2011

Digest:         A judge who was previously elected to a board of commissioners for a fire district in a public election may not run for re-election to this non-judicial office and may not serve out the remaining years of his/her term where the fire commissioners’ primary function is to submit the fire company’s budget for public hearing, modification and approval.

Rules:          Town Law §§ 174(2); 189-e; 22 NYCRR 100.0(A); 100.0(N); 100.2; 100.2(A); 100.3(A); 100.5(A)(1); 100.5(B); 100.6(B)(4); Opinions 10-207; 09-90; 06-47; 03-135; 02-86; 02-57; 98-54 (Vol. XVI); 96-43 (Vol. XIV); 95-102 (Vol. XIII); 91-06 (Vol. VII); 90-92 (Vol. VI); 90-79 (Vol. VI); 90-50 (Vol. V); 89-147 (Vol. IV).

Opinion:

         The inquiring part-time judge, who was recently appointed to judicial office but has not yet taken the bench, asks whether he/she may serve the remaining years of his/her term as an elected fire commissioner for a local fire district and thereafter run for re-election. The judge states that he/she was elected as fire commissioner in a non-partisan public election overseen by the local board of elections. The judge further explains that this position is unpaid and that the person who holds the position is not designated a peace officer. According to the judge, the primary function of the fire commissioners is “to submit the fire company’s budget for public hearing, modification after the public hearing (if merited) and then to the Town Board through the Town Clerk for approval. The proposed budget may be minimal, i.e., hand equipment and gasoline or significant, i.e., $400K for a new truck.” 

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must refrain from impermissible political activity (see generally 22 NYCRR 100.5[A][1]) and must resign from judicial office on becoming a candidate for public election to non-judicial office (see 22 NYCRR 100.5[B]). Subject to these and other limitations, a part-time judge may accept public employment in a federal, state or municipal department or agency, provided that the employment 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]; cf. 22 NYCRR 100.3[A] [a judge’s judicial duties must take precedence over all the judge’s other activities]).

         It is well-settled that a judge must resign from judicial office “upon becoming a candidate for elective non-judicial office either in a primary or in a general election,” subject to limited exceptions not relevant here (22 NYCRR 100.5[B]).¹ This rule applies to all public elections, including “partisan elections, nonpartisan elections and retention elections” (22 NYCRR 100.0[N]). Accordingly, this Committee has previously advised that a judge may not run for election as commissioner of a fire district (see Opinion 10-207; compare Town Law §174[2] [providing for public election of commissioners of a fire district] with Town Law §189-e [providing that commissioners of a joint fire district may be appointed or elected]).

         However, the Committee has not previously addressed whether a part-time judge who had been elected as commissioner of a fire district before he/she assumed the bench may serve the remainder of his/her term or must resign the non-judicial office immediately. The Committee has advised that a judge must immediately resign from publicly elected non-judicial positions on a town council (see Opinion 90-92 [Vol. VI]); village board (see Opinion 91-06 [Vol. VII]); public library board (see Opinions 09-90; 02-86); and public school board (see Opinions 09-90; 03-135; 96-43 [Vol. XIV]; 90-79 [Vol. VI]; 90-50 [Vol. V]). In each of these situations, the Committee has advised that the two positions were ethically incompatible, due to the likelihood that the judge will be involved in highly visible political and controversial issues (see Opinion 90-92 [Vol. VI]), particularly when budgets and taxes are involved (see e.g. Opinions 96-43 [Vol. XIV]; 90-79 [Vol. VI]). By contrast, the Committee has previously advised that, although a judge may not run for re-election as treasurer of a fire district, “the judge may continue to serve in that position ... until the end of the current term, because there is no conflict or incompatibility in the duties of the two offices” (Opinion 90-50 [Vol. V] [prohibiting continued service on a school board due to incompatibility with judicial office, but permitting continued service as treasurer of a fire district]).

         The inquiring judge describes the primary role of a commissioner for a fire district as submitting the fire company’s budget for public hearing, and, if necessary, modifying it after the public hearing. The judge indicates that any particular proposed budget may involve a range of expenditures that may be significant or minimal or both. Based on these facts, the Committee concludes that the role of fire commissioner of a fire district is incompatible with judicial office because it may involve the judge in highly visible political and controversial issues involving local budgets and taxes (see e.g. Opinions 96-43 [Vol. XIV]; 90-92 [Vol. VI]; 90-79 [Vol. VI]).²

            Opinion 90-50 (Vol. V) is overruled to the extent that it permits a part-time judge to continue to serve as treasurer of a fire district until the end of the current term. 

Note on terminology: The term "town council" as used in prior Opinions is synonymous with "town board."

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       ¹A person becomes a candidate “as soon as he or she makes a public announcement of candidacy, or authorizes solicitation or acceptance of contributions” (22 NYCRR 100.0[A]).

       ² The Committee notes that, as a result of this conclusion, judges should seek further guidance from the Committee before relying on Opinion 06-47 (ethically permissible to serve on an advisory committee to a board of fire commissioners of a fire district regarding the potential need for a substantial capital improvement project). This Opinion does not address any issues relating to the propriety of serving as an officer or director of a local fire department (see e.g. Opinions 02-57; 98-54 [Vol. XVI]; 95-102 [Vol. XIII]; 89-147 [Vol. IV]).