Opinion 18-88

May 10, 2018

Digest:         A judge whose second-degree relative formerly served as the County Sheriff must disqualify him/herself from all matters pending in the agency during his/her relative’s tenure.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 17-162; 16-57; 14-10; 09-242; 06-111; 03-133; 03-87; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The judge’s second-degree relative¹ currently heads the local sheriff’s department. Throughout the relative’s tenure as the County Sheriff, the judge has not presided in any cases involving the agency (see Opinion 09-242). The judge’s relative now plans to step down at the end of his/her current term. The judge asks about his/her ethical obligations thereafter, including whether he/she may preside in matters involving arrests that took place during his/her relative’s tenure as County Sheriff.

         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 not allow family or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]); and, thus, is disqualified if, for example, the judge knows that a relative within the fourth degree of relationship is likely to be a material witness in the proceeding (see 22 NYCRR 100.3[E][1][e]). Where disqualification is not mandated under a specific provision of the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[f]) or Judiciary Law § 14, the key question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under this objective test, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

         We have advised judges whose second-degree relative formerly served as the District Attorney they may generally preside over matters involving the relative’s former subordinates, provided the judge can be fair and impartial (see Opinion 16-57). However, we have not previously considered whether a judge may preside over cases that were pending in a law enforcement agency or prosecutor’s office during his/her relative’s tenure as head of the office or agency. On this issue, we believe the judge’s obligations should certainly be no greater than the situation where the judge previously headed a law enforcement agency or prosecutor’s office. We have advised that a judge who formerly served as the District Attorney is disqualified from “any cases that were pending in the District Attorney’s office during” his/her tenure (Opinion 14-10; see also Opinions 17-162; 03-87) but need not otherwise recuse or disclose in matters involving the office (see Opinion 03-87) and/or “individuals who were previously investigated or prosecuted by the District Attorney’s office during the judge’s term” (Opinion 14-10). Similarly, a judge who previously served as police chief for a town police department is disqualified in matters pending in the police department during the judge’s tenure (see Opinion 03-133).

         Applying the same standard here, we conclude this judge must disqualify him/herself from all matters pending in the sheriff’s office during his/her second-degree relative’s tenure as the County Sheriff, including arrests made during this period.

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¹ Relatives within the second degree of relationship include a spouse as well as children, parents, grand-children, siblings, and grandparents by blood or marriage. In analyzing disqualification requirements, the Committee has recognized the second degree of consanguinity as a relatively “intimate and significant family connection” (Opinion 06-111).