Opinion 15-224

December 3, 2015

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         Where the village police chief is a town board member who may participate in setting the town justice’s salary or the court’s budget, the justice is disqualified, subject to remittal, in any village police case.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 09-106; 94-61; 90-175.

Opinion:

            A town justice asks whether he/she may preside in matters involving a local village police department, now that the village police chief was elected to the town board. The police chief “writes tickets, files accusatory instruments, appears at arraignments, and conducts [his/her] own vehicle and traffic trials in the [town court]” where the judge presides,¹ and also “supervises several part-time officers that utilize the [town] court in the same manner.” The town board sets the town justice’s salary, although the police chief has suggested he/she would abstain from voting on matters related to the court in order to avoid this apparent conflict of interest.

         A judge must avoid even the appearance of impropriety (22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (22 NYCRR 100.2[A]). Also, a judge must disqualify him/herself when the judge’s impartiality might reasonably be questioned (22 NYCRR 100.3[E][1]).

         The Committee has consistently advised that a part-time judge should disqualify him/herself when a town board member appears in any type of action before the judge, if such member is empowered to participate in setting the judge’s salary or court’s budget(see Opinions 09-106; 94-61). Additionally, the Committee has advised that a part-time judge should disqualify him/herself in contested matters where a deputy sheriff, who is also on the town board and participates in fixing the judge’s salary, appears as a prosecutor or witness (see Opinion 90-175). In each instance, the disqualification is subject to remittal (see 22 NYCRR 100.3[F]; Opinions 09-106; 94-61; 90-175), provided the judge fully discloses the basis for disqualification on the record and no party is appearing without counsel (see Opinions 15-82; 15-06).²

            Under these circumstances, the judge presides over matters where the police chief and officers under his/her supervision appear as the prosecutor and/or witness, and is required to evaluate their conduct and credibility. Because the village police chief, as a town board member, has the power to participate in setting the judge’s salary and court budget, the judge’s impartiality in matters involving the village police department may reasonably be questioned (see Opinion 90-175; 22 NYCRR 100.3[E][1]). Moreover, even if the police chief chooses to abstain from voting on court-related matters, the potential for the public perception of partiality is nevertheless present given that the police chief could, and would be expected to, take part in deliberations on the judge’s salary and the court’s budget (see id.). Simply put, the police chief’s proposed abstention from voting on court matters while serving as a board member - while well intentioned - is insufficient to address the appearance of impropriety.

         Therefore, the inquiring town justice should disqualify him/herself on any village police matter, subject to remittal (if all parties are represented by counsel) (see 22 NYCRR 100.3[E][1]; 100.3[F]).

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           ¹ The town court only has one justice.

           ² Remittal is a three-step process: (1) the judge must fully disclose the basis for disqualification on the record; (2) without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree the judge may preside; and (3) the judge must independently conclude he/she can be impartial and be willing to preside in the case. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement in the record of the proceeding (see 15-06; 22 NYCRR 100.3[F]).