Opinion 17-105
September 7, 2017
Digest: A town justice need not prohibit his/her law firm employee from serving on the town board, provided the employee agrees in writing to abstain from any matters involving the justice court, including the judge's salary and the court's budget.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(B); Opinions 13-117; 13-28; 12-53; 10-42; 05-63; 03-21; 99-70.
Opinion:
An individual who works for the inquiring part-time town justice in the judge's private law office is running for the town board. If the judge's law office employee is elected, the judge anticipates the employee "would need to recuse on any matter" involving the justice court, including the judge's salary. The judge also recognizes that he/she cannot preside in matters involving a town board member. Under these circumstances, the judge asks whether it presents "an unfixable conflict" under Part 100 if his/her law office employee assumes a position on the town board.
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 also must not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment (see 22 NYCRR 100.2[B]).
We have advised that town justices may not permit their full-time court clerk to serve simultaneously as deputy town supervisor (see Opinion 12-53). After all, "if the court clerk were to have power over payment of court expenses and salary payments to the judges who are supervising him/her" as deputy town supervisor, "this could readily compromise the appearance, if not the reality, of judicial independence in significant respects" (id.). Likewise, a town court clerk or bailiff should not serve on the town board (see Opinions 13-117; 10-42), and a village court clerk should not serve on the village board of trustees (see Opinion 03-21). In each instance, we concluded that the positions are ethically incompatible. In Opinion 13-28, we summarized several potential conflicts when a town or village court employee serves on the executive body of the town or village:
(1) a possible perception that the court employee is in a position to influence the decisions of the executive body; (2) if the position appears to provide a court employee with influence over payment of court expenses and salaries to the judges who are supervising the court employee, this could significantly compromise at least the appearance of judicial independence and may also undermine the judges' "capacity to fully meet" their ethical obligation to supervise the employee; and (3) a potentially "strong appearance of impropriety and/or partiality" if the extra-judicial office referred to is one which directly involves the enforcement of local laws, and the court in which the employee is employed has jurisdiction in this area.
We have also advised that a part-time city court judge who is elected (i.e. not subject to mayoral appointment) may continue in private law practice with an attorney who becomes mayor of the city (see Opinions 05-63; 99-70). We explained that the mayor, as a city official, "has no control over the salary or other employment benefits" of city court judges, who are paid by New York State (Opinion 99-70). Conversely, where the mayor has appointive authority over an acting city court judge, "the appearance of impropriety inherent in this relationship" constitutes "a bar to a continuing professional relationship" if the judge's law partner is elected as mayor (Opinion 05-63).
Here, the individual in question is an employee of the judge's private law firm, rather than a court clerk, bailiff, or other court personnel. As a town board member, he/she will have no appointive authority over the judge, but could nonetheless vote on the judge's salary or the court's budget. Under these circumstances, we believe the appearance of impropriety can be alleviated if the judge's employee has no involvement, as town board member, in any matters relating to the court.
Accordingly, the judge need not prohibit his/her law firm employee from also serving on the town board, provided the employee agrees in writing to abstain from any matters involving the justice court, including the judge's salary and the court's budget. If the employee is unwilling or unable to make this written commitment, the judge must advise him/her to choose between the two positions.