Opinion 16-70

May 5, 2016

Digest:         A judge may exercise his/her statutory obligation to exercise ongoing administrative responsibilities over a municipal office or agency, even though the judge is currently disqualified from presiding over any proceedings involving the office.

Rules:          Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(B); 100.3(C); 100.3(E)(1); 101.1; Opinions 14-192; 03-136; 98-09.

Opinion:

         The inquiring judge is currently disqualified from proceedings involving a particular government office or agency, based on his/her prior employment. The judge states that he/she nonetheless has “a statutory obligation to administer/oversee” that office.¹ The judge asks if he/she may exercise these ongoing administrative or oversight responsibilities, which include, inter alia, personnel appointments and compensation determinations.

         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 (22 NYCRR 100.2[A]). To that end, a judge must disqualify him/herself “in a proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         Although a judge’s duties are both “adjudicative” (22 NYCRR 100.3[B]) and “administrative” (22 NYCRR 100.3[C]), the disqualification rule more narrowly requires a judge to disqualify him/herself in “a proceeding” in which the judge’s impartiality might reasonably be questioned (22 NYCRR 100.3[E][1]). This language makes clear that disqualification pertains primarily to a judge’s duties in specific, identifiable proceedings.

         Thus, the Committee previously addressed circumstances where judges with supervisory duties were disqualified from handling case and trial assignments and litigation-related supervisory issues in specific proceedings wherein they were personally disqualified (see e.g. Opinions 14-192; 03-136; 98-09). However, these inquiries did not address the novel issue here, about a judge’s ability to handle ongoing supervisory or administrative functions unrelated to any “proceeding.”

         This judge, in his/her specific judicial role, apparently has a statutory obligation to administer and oversee a particular municipal office or agency. The Committee thus concludes he/she may exercise this statutory duty, but yet be currently disqualified from presiding over any proceedings involving the office.

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         ¹ The Committee expressly relies on the inquiring judge’s representations to this effect, as it cannot comment on any legal questions (see Judiciary Law 212[2][l]; 22 NYCRR 101.1).