Opinion 13-23

March 14, 2013

Digest:        A part-time town justice may accept appointment to the compensated part-time position of historian for the same municipality in which he/she presides.

Rules:          Village Law § 3-300(3); 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1); 100.6(B)(4); Opinions 12-73; 07-204; 03-22.

Opinion:

         A part-time town justice asks whether he/she may accept appointment to the part-time position of historian for the same municipality in which he/she presides. The judge says the job duties include “collecting and preserving materials related to the history of the [municipality], as well as answering inquiries pertaining to [the municipality’s] history.” The judge anticipates the time commitment will under 30 hours per year, and the compensation is below $300 per year. The judge would not participate in any fund-raising activities for the office.

         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 and does not 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 advised that a part-time judge may simultaneously hold certain other appointive positions in the same municipality, including that of assessor (see Opinion 07-204); school tax collector (see Opinion 12-73); and bookkeeper to the supervisor of the municipality (see Opinion 03-22).

         Here, too, the Committee concludes that the inquiring town justice may serve as the municipality’s historian, as no incompatible or conflicting duties appear to exist between the two positions (see 22 NYCRR 100.6[B][4]).¹ The judge must, of course, disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned, subject to remittal, including in matters where his/her employer is a party (see 22 NYCRR 100.3[E][1]; Opinions 12-73; 07-204). However, if the judge must disqualify him/herself so frequently that it interferes with the judge’s judicial duties, the judge may not continue to hold both offices (see 22 NYCRR 100.3[A]; Opinions 12-73; 07-204).

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     ¹ A part-time village justice is prohibited from simultaneously holding an elective and an appointive village office (see, Village Law §3-300[3]).