Opinion 13-163

December 19, 2013

Dear :

         This responds to your inquiry (13-163) asking whether it is ethically permissible for you to preside over matters involving code violations after January 1 when the Village Code Enforcement Officer will also be serving as a member of the Town Board and will, therefore, have salary-setting authority with respect to your salaries as the Town Court justices.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). In addition, a judge must disqualify him/herself in a proceeding in which the judge’s impartiality may reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee has previously determined that when a member of the Town Board appears in any type of action before the judge, if such member has the authority to participate in setting of the judge’s salary, the judge should disqualify him/herself to avoid the appearance of impropriety. This includes code enforcement actions, and disqualification is subject to remittal (see 22 NYCRR 100.3[F]).

         Enclosed, for your convenience, are Opinions 09-16 and 90-175 which address this issue.

Very truly yours,

George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Chair

Encls.