Opinion 18-152
October 18, 2018
Digest: A part-time town justice may simultaneously serve as the appointed treasurer of the town’s taxpayer-supported fire district, where the judge has no involvement in the budgeting process but instead pays invoices after the fire commissioners’ approval.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1); 100.4(A)(1)-(3); 100.5(B); 100.6(B)(4); Opinions 11-22; 07-204; 07-146; 00-33; 95-102; 90-50.
Opinion:
A non-judge who expects to assume judicial office in a few months asks if he/she may serve simultaneously as town justice and treasurer of the local fire district. The treasurer position is appointive (not elective), and the primary duties are paying invoices after the fire commissioners’ approval. The district’s income is from town taxes and equipment sales; it does not receive donations. Though the district is supported by town taxes, it is the board of fire commissioners (not the treasurer) who drafts and approves the annual budget and gives it to the town for approval.
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 must disqualify him/herself in any “proceeding in which the judge's impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]). A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), and thus his/her extra-judicial activities must not “cast reasonable doubt on the judge’s capacity to act impartially as a judge” or “interfere with the proper performance of judicial duties” (22 NYCRR 100.4[A][1]-[3]). Part-time judges “may accept private employment or public employment in a federal, state or municipal department or agency, provided such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of” their judicial duties (22 NYCRR 100.6[B][4]).
The propriety of a judge’s involvement with a fire department or a fire district can be a fact-specific determination (see e.g. Opinions 11-22 fn 2 [distinguishing between a fire district and a fire department]; 07-146 [recognizing that some positions may “confer peace officer status or involve investigative responsibilities”]).1 We have said a judge may not serve as a publicly elected treasurer of a fire district (see Opinion 90–50, as modified by Opinion 11-22; cf. 22 NYCRR 100.5[B]). Where the position is not subject to public election and does not involve peace officer status or investigative responsibilities, however, we have said a town justice may act as treasurer of the local not-for-profit fire department (presumably a fire company) “for the sole purpose of receiving dues, depositing funds and paying bills,” although his/her name must not be used to solicit contributions, even “on the return address” of the envelope (see Opinion 95-102).
On the other hand, we have advised that a new part-time judge may not complete his/her term as a fire commissioner of a taxpayer-supported fire district, where the fire commissioners’ primary function is to submit the fire company’s budget for public hearing, modification and approval (see Opinion 11-22).2 As we explained (id. [citations omitted]):
The judge indicates that any particular proposed budget may involve a range of expenditures that may be significant or minimal or both. Based on these facts, the Committee concludes that the role of fire commissioner of a fire district is incompatible with judicial office because it may involve the judge in highly visible political and controversial issues involving local budgets and taxes.
Here, unlike Opinion 11-22, the fire district’s appointed treasurer pays invoices as approved by the board of fire commissioners. The board drafts and approves the annual budget, then submits it to the town. As the treasurer primarily exercises ministerial functions (i.e. paying invoices) having no actual or apparent executive discretion or responsibility for setting and/or advocating for the budget, the judge will not be in a position where he/she is involved in highly visible political and controversial issues incompatible with judicial office. Accordingly, we conclude the inquirer may simultaneously serve as town justice and as the appointed treasurer of a taxpayer-supported fire district in the same town where he/she presides (cf. Opinion 95-102 [town judge may serve as treasurer of local fire department]).
As always, the judge must disqualify him/herself in any proceeding where his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]; Opinions 07-146 [judge who serves as volunteer fire prevention officer or volunteer scene safety person for a local fire department is disqualified “in any case arising from a fire in which the judge was involved or in any case involving the volunteer fire department”]; 07-204 [town justice who serves as the town’s appointed assessor is disqualified, subject to remittal, when “the town appears in his/her court as a party”]).
If the fire district engages in any fund-raising, the judge must not participate or lend his/her name to such activity (see e.g. Opinions 95-102 [judge who is treasurer of fire department must not permit his/her name to be used in solicitations, including “on the return address” of an envelope seeking contributions]; 00-33 [judge who is the president of a public library’s board of directors must not chair, sit on the dais, or otherwise participate in public meetings seeking support for a bond proposition to expand the library]).
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1 In “Fire Protection in New York State: How Is It Provided in Your Community,” the Comptroller’s Office says the state’s fire protection system “is surprisingly complex,” involving a wide variety of municipal fire departments, independent fire districts, and fire protection districts, as well as private not-for-profit fire companies (2). Confusingly, “the terms ‘fire company’ and ‘fire department’ are often used interchangeably” (id. 8). Most towns establish fire districts, “separate political subdivisions” whose fire commissioners “and often the treasurer” are subject to public election (id. 5). “Generally, a fire district can levy taxes and incur debt without approval from any other governmental entity. It is responsible for adopting an annual budget – subject to certain expenditure limitations – after a public hearing” (id. [footnotes omitted]).
2 The judge in Opinion 11-22 had been elected as a fire commissioner in a public election before assuming judicial office. Since a judge must resign from judicial office “upon becoming a candidate for elective nonjudicial office,” we also said he/she may not run for re-election (Opinion 11-22, quoting 22 NYCRR 100.5[B]).