Opinion 17-41

March 16, 2017

Digest:       A judge whose first-degree relative has been hired as a law advisor to the local police department on matters unrelated to criminal investigations and prosecutions may preside in cases involving the police, provided the judge can be fair and impartial and his/her relative is not involved in the case.

Rules:        Public Officers Law §§ 84-90; 22 NYCRR 100.0(C); 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(d)(i)-(iii); 100.3(E)(1)(e); Opinions 16-03; 05-86; 98-27; 93-104; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A judge whose first-degree relative¹ is a law advisor to a local police department asks if he/she may preside in cases involving the department. The law advisor has no “direct contact with the investigatory functions of the police department, or any of its work in aiding the District Attorney in preparing criminal prosecutions.” Rather, the judge’s relative will handle freedom of information law requests (see generally Public Officers Law §§ 84-90) and help develop certain administrative policies and procedures for the department.

         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]). Thus, a judge must not allow family, social political or other relationships to influence his/her judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in any case where his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). For example, a judge is disqualified in matters where a sixth-degree relative by blood or marriage is a party to the proceeding; is an officer, director, or trustee of a party; has an interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][d][i]-[iii]); or where a fourth-degree relative by blood or marriage is acting as a lawyer or is likely to be a material witness in the proceeding (see 22 NYCRR 100.3[E][1][e]). Conversely, where disqualification is not mandated, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

         The Committee has advised that a judge whose spouse is a statewide information security officer for the state police and internally advises that agency on technology issues “need not disclose their relationship or disqualify him/herself in cases involving the state police” (Opinion 16-03). Discussing prior opinions, the Committee explained:

[A] judge need not disclose the relationship or disqualify him/herself from presiding in criminal matters involving his/her law enforcement spouse’s fellow officers as long as the spouse had no supervisory role and was not personally involved in such matters. The Committee reasoned that, since the spouse had a non-supervisory role and he/she presumably would not be involved in every criminal case in which the department plays a role, there could be no reasonable expectation that the judge’s spouse would likely be a material witness. (id. [citations and footnote omitted])

In essence, where the judge’s first-degree relative is employed by a police department in a non-supervisory position, the “basic guidepost ... is whether there had been direct participation in the matters before the Court” (Opinion 98-27 [but reaching a different conclusion where the judge’s spouse holds “a position at the highest echelon of the Department”]). For example, a judge whose child is an officer of the sheriff’s department may preside in criminal cases investigated by the department, provided his/her child did not personally participate in the case (see Opinion 93-104). Likewise, a judge whose child is an assistant corporation counsel is disqualified from matters prosecuted by the Office of Corporation Counsel “if the child had any involvement, in or out of court, in the matter” (Opinion 05-86), but may preside without disclosure or disqualification when “another staff attorney is appearing in a matter in which the child had no involvement” (id.).

         Here, the judge’s relative’s position with the police department is administrative in nature, with no direct or supervisory participation in any stage of criminal cases that may come before a court. Under these circumstances, the judge’s impartiality cannot reasonably be questioned in matters involving the police, provided the judge’s relative is not involved in the particular case. Accordingly, neither disqualification nor disclosure of the relationship is required.

         Of course, if the judge questions his/her ability to be impartial in a particular case, he/she must not preside.

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           ¹ Relatives within the first degree of relationship include a child or parent of the judge or his/her spouse, or the spouse of such a person (see 22 NYCRR 100.0[C]).