Opinion 12-73

April 26, 2012

Digest:         A part-time judge may serve as a school tax collector in the municipality where the judge presides.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1); 100.6(B)(4); Opinions 07-204; 94-74 (Vol. XII); 90-120 (Vol. VI).

Opinion:

         A recently appointed part-time judge asks whether he/she may continue to serve as school tax collector in the municipality where he/she presides.¹ The judge states that his/her duties in the non-judicial position involve receiving school tax payments during a two-month period; after that period, he/she closes out the books and “return[s] all paperwork and [the] computer to the school treasurer.” The treasurer handles assessments, negotiations, bank deposits, and other such duties, without the school tax collector’s involvement. Moreover, the “the county assumes all responsibility for collecti[ng]” any unpaid or delinquent taxes. If the county brings a collection proceeding, the judge’s only role would be to authenticate records he/she had prepared regarding tax payments.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Although a judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]), a part-time judge may accept public employment in a federal, state or municipal department or agency, provided such employment is not incompatible with judicial office nor conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]). A judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee has previously advised that a part-time municipal judge may also be employed as an appointed assessor for the municipality in which he/she presides, but must disqualify him/herself when the municipality appears in his/her court as a party (see Opinion 07-204). Similarly, a part-time judge who holds a full-time position as director of the guidance department at a public school district situated within the area of the judge’s court is disqualified from presiding over matters in which the school district is a party (see Opinion 90-120 [Vol. VI]).

         Here, too, the Committee concludes that the inquiring judge may serve as a tax collector for the local school district, as there do not appear to be any incompatible or conflicting duties between the two positions (see 22 NYCRR 100.6[B][4]). The judge must, of course, disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including in matters where his/her employer is a party (see 22 NYCRR 100.3[E][1]; Opinions 07-204; 90-120 [Vol. VI]). However, if the judge must disqualify him/herself so frequently that it interferes with the judge’s judicial duties, the judge cannot continue to hold both offices (see 22 NYCRR 100.3[A]; Opinion 07-204).

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    ¹ The judge states that, as the school tax collector, he/she is not a municipal employee and is not a member of the municipality’s governing board. It appears that the judge will be employed by the school district, which is typically a separate municipal corporation (cf. Opinion 94-74 [Vol. XII]).