Opinion 11-68

June 16, 2011

Digest:        (1) An acting village justice may continue to serve as a member of the architectural review board of the town in which the village is located. (2) An acting village justice who is a member of a town architectural review board must disqualify him/herself from any matters involving the review board, including zoning matters related to the review board’s recommendations, when the judge is assigned to sit temporarily in the town court.

Rules:         22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1); 100.4(C)(2)(a); 100.6(B)(4); Opinions 10-12; 08-121; 07-204; 05-141; 05-03; 99-74 (Vol. XVIII); 95-50 (Vol. XIII); 94-98 (Vol. XII); 94-02 (Vol. XII); 90-14 (Vol. V); Joint Opinion 89-157/90-07 (Vol. V); Opinions 89-82 (Vol. V); 88-109 (Vol. III).

Opinion:  

         An Acting Village Justice states that for several years prior to his/her judicial appointment, he/she has served on the architectural review board (review board) of the town in which the village court is located. The judge states that the village has its own independent boards and departments, and thus the review board does not consider any applications affecting properties located in the village. According to the judge, once an applicant has received approval from the town planning board to build or renovate commercial property, the applicant must submit proposed signs and facades to the review board for consideration. Although a town enforcement officer could issue a summons if an applicant failed to appear before the review board or disregarded the review board’s recommendations, the judge states that the recommendations are advisory, the proceedings are largely non-adversarial in nature, and summonses are rarely issued. The judge notes that the review board’s work has not been controversial and no litigation involving the review board has occurred during his/her tenure. In light of these circumstances, the judge asks whether he/she may continue to serve on the review board. The judge also asks whether service on the review board would be incompatible with a temporary assignment to the town court a few times per year when the town justices are unavailable. The judge states that he/she would disqualify him/herself in any matter involving alleged town code violations relating to review board recommendations.

         A judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]). Accordingly, a judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself from any matter in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). A part-time judge may, however, simultaneously hold public employment in a federal, state or municipal department or agency, so long as such employment is not incompatible with judicial office and does not conflict with or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]; see also 22 NYCRR 100.4[C][2][a] [permitting part-time judges to accept appointment to a governmental position, even if the position is concerned with issues of fact or policy other than the improvement of the law, the legal system and the administration of justice]).

         Applying these principles, the Committee has previously advised that a part-time judge may accept appointment to a revaluation review committee and finance advisory committee of the municipality where the judge presides (see Opinion 10-12); a loan committee for a local economic development agency (see Opinion 05-03); a county agricultural advisory committee (see Opinion 94-98 [Vol. XII]); a city’s industrial development agency (see Opinion 95-50 [Vol. XIII]); and a town’s board of tax assessment review, where the board’s decisions do not usually involve highly controversial issues and the judge’s court does not hear appeals of such decisions (see Opinion 90-14 [Vol. V]).

         In contrast, the Committee has advised that judges may not serve on committees that focus on “political or controversial issues,” such as a committee that will recommend revisions to the town code (see Opinion 05-141); local school boards (see Joint Opinion 89-157/90-07 [Vol. V]); zoning or planning boards (see Opinions 89-82 [Vol. V]; 88-109 [Vol. III]); a regional council dealing with the management of policies affecting natural resources (see Opinion 94-02 [Vol. XII]); and a town’s Water Advisory Committee where there was a substantial likelihood that the committee would be involved in matters of public controversy (see Opinion 99-74 [Vol. XVIII]).

         In Opinion 08-121, the Committee advised that a village justice could simultaneously serve as Director of Planning and Zoning Administration for a town. However, if the judge served in that capacity for the town, the judge could not also serve as acting town justice because his/her extra-judicial duties involved the judge in “the daily operation of town government units that are responsible for zoning and planning, as well as the administration and enforcement of zoning and land use planning rules and regulations” (Opinion 08-121; see also Opinion 05-141 [noting that it would create an appearance of impropriety for a town judge to serve on a committee to recommend changes to the town code, where such laws will be enforced in the judge’s court]).

         In the Committee’s view, the circumstances set forth in the present inquiry are unlikely to give rise to the kinds of conflicts and controversies presented in the prior opinions described above. Therefore, the judge may serve on the review board and as acting village justice for the village located within the town. And, considering the nature of the functions the review board performs, the Committee concludes that the judge may continue to serve as a member of the review board and even though he/she occasionally is assigned to sit temporarily in the town court. However, on those occasions, the judge must disqualify him/herself from any matters involving the review board or its recommendations, including alleged town code violations relating to a review board recommendation (see 22 NYCRR 100.3[E][1]; cf. Opinion 07-204 [part-time town justice who also serves as town assessor is disqualified in proceedings where the town is a party]).