Opinion 15-07

January 29, 2015

Digest:         To the extent permitted by law, a town judge may voluntarily undertake to clear snow from the driveway of an abandoned property near his/her home as a public service, even if doing so may also inadvertently aid local law enforcement activities.

Rules:          Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3); Opinions 09-156; 05-52; 05-13; 94-69.

Opinion:

         For several years, as a courtesy and without compensation, the inquiring part-time judge has cleared snow from the driveway of a now-abandoned commercial property near the judge’s home. In addition to members of the general public who may use the driveway to turn around, law enforcement officers also use the driveway to monitor traffic. The judge states that a local government official recently “directed” the judge to stop clearing the driveway, although the inquiring judge is unaware of any legal authority for the request. The inquiring judge believes a nearby business owner who maintains a liquor license complained about the judge’s action, because the law enforcement officers may observe the business owner’s customers from the driveway. The inquirer asks whether under these circumstances, it is ethically improper for him/her to clear snow from the driveway on the abandoned commercial property.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may participate in community, civic and charitable endeavors as a volunteer, as long as, inter alia, the activities do not reflect adversely on impartiality or interfere with the performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]; 100.4[C][3]; Opinion 94-69; see also Opinions 09-156 [involvement in an informal group interested in improving a city’s quality of life, including cleanup projects]; 05-52 [participation in a village’s garden walk]; 05-13 [participation in a land conservancy formed to preserve green space]).

         Clearing snow from the driveway on a nearby abandoned property under the circumstances presented does not cast reasonable doubt on the judge’s impartiality, as the benefit to law enforcement officers is coincidental and no greater than the benefit realized by the public at large. Moreover, while the Rules Governing Judicial Conduct do not preclude the inquiring judge from discontinuing his/her voluntary public service of clearing the snow from a nearby abandoned property, the Committee believes that the judge need not do so at the direct or indirect request of a private business owner, particularly where the judge is aware of no legal basis or authority for the request.¹

         The Committee notes that it cannot comment on any legal questions (see Judiciary Law § 212[2][l]).

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         ¹ Indeed, although the Committee assumes the inquiring judge is free to discontinue a wholly voluntary act of public service at any time for his/her own reasons, the Committee believes it could potentially create an appearance of impropriety for the inquiring judge to acquiesce in a government official’s demand that the judge desist, where (as here) the judge has concluded that the official’s primary motivation is to benefit a privately owned business by impairing a law enforcement function.