Opinion 19-07
January 31, 2019
Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).
Digest: A part-time town justice may be employed as a town trail maintenance
worker, but must disqualify him/herself from cases in which his/her
immediate supervisor or the department is a party, and from cases
involving the trail. Remittal may be available.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1); 100.3(F); 100.4(C)(2)(b); 100.6(B)(4); Opinions 16-130; 16-53; 16-21; 15-116; 13-23; 12-73; 12-53; 11-141; 08-57; 07-204; 07-75; 03-97; 03-22; 00-62; 98-113; 96-92; 92-09; 90-37; 88-109.
Opinion:
A part-time town justice asks if he/she may concurrently work for the town as a part-time community trail maintenance worker. The position is not currently under a distinct department but is supervised directly by the town supervisor. As a trail maintenance worker, the judge will not speak on behalf of the town and will play no “management” role except to occasionally supervise two other trail maintenance workers. Thus far, there have been no court cases involving the community trail in the judge’s court, and while it is possible there could be cases involving claims of trespass or damage to property, the judge believes there would be few, if any.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Although a judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), part-time judges may nonetheless accept public employment, “provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]). A judge must disqualify him/herself in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), although disqualification may be remitted in appropriate circumstances (see 22 NYCRR 100.3[F]).
We have frequently addressed the propriety of part-time town or village justices maintaining non-judicial employment with the town or village where they preside. A review of these opinions suggests three broad categories of employment.
The first involves employment positions that are clearly incompatible with judicial responsibilities. A judge is prohibited from accepting such employment. For example, a judge may not accept employment as a law enforcement officer (see 22 NYCRR 100.4[C][2][b]) because the judicial and law enforcement roles are fundamentally incompatible and give the appearance of partiality and conflict of interest. A judge also must not serve as court clerk for his/her co-judge (see e.g. Opinions 16-53; 98-113). Nor may a town justice accept employment with his/her town as the deputy town supervisor (see Opinion 12-53 fn 2 [modifying prior opinion]); the town clerk (see Opinion 96-92); chair of the town planning board (see Opinion 88-109); or town code enforcement officer or building inspector (see Opinions 07-75; 03-97; see also Opinion 03-22 [secretary to code enforcement officer]), all of which could involve the judge in high-level executive action; access to limited and sensitive information; and/or policy-making, prosecutorial or management roles that conflict with judicial independence, impartiality and neutrality. Thus, a part-time town justice is barred from non-judicial employment with his/her town if it is inherently incompatible with the judge’s judicial responsibilities.
The second group consists of positions with the judge’s town/village that are not inherently incompatible with judicial responsibilities and are unlikely to frequently involve matters before the judge’s court but do involve the exercise of high-level executive or management authority that could raise reasonable questions about the judge’s impartiality when the town or village itself is a party. Examples of such positions include: bookkeeper to the town supervisor (see Opinions 03-22; 90-37); town park manager (see Opinion 92-09); town assessor or tax collector (see Opinions 15-116; 12-73; 07-204; see also Opinion 98-113 [assistant to the town assessor]); and municipal historian (see Opinion 13-23). While the judge may accept such employment, he/she is disqualified if his/her direct supervisor, town/village department, or the town/village itself appears as a party in a case before the judge. As long as no party is appearing without counsel, the judge’s disqualification is subject to remittal in such matters following the usual three-step process (see “Note on Remittal,” infra at 4). However, if disqualification is frequently required, the judge must choose between the two positions (see Opinion 92-09; 22 NYCRR 100.3[A]).
The third group involves employment positions with the judge’s town/village that are not inherently incompatible with judicial responsibilities, are unlikely to be implicated frequently in matters before the judge’s court, and do not involve the exercise of high-level executive or management authority. These positions are often entry-level and/or non-supervisory and are unlikely to raise reasonable questions about a judge’s impartiality in matters involving the town/village. Examples include serving as a laborer or truck driver for the municipality’s department of public works (see Opinion 11-141) or highway department (see Opinions 08-57; 00-62). While the judge may accept such employment, he/she must disqualify him/herself if his/her direct supervisor or municipal department appears as a party in a case before the judge (see Opinions 11-141; 08-57; 00-62). However, he/she need not disqualify him/herself simply because the town or village is a party (see id.). Again, as long as no party is appearing without counsel, the judge’s disqualification is subject to remittal in such matters following the usual three-step process (see “Note on Remittal,” infra at 4).
Here, the inquiring judge’s situation fits in the third group. The position and duties of a community trail maintenance worker for the town are not inherently incompatible with judicial responsibilities, do not appear to compromise judicial independence, and will not involve the judge in the exercise of high-level executive or management authority on behalf of the town. Nor is it likely there will be many cases in the judge’s court where the community trail is the subject matter of the case. But if there is such a case in the judge’s court, then the judge is disqualified, subject to remittal after full disclosure of his/her employment relationship if no party is appearing without counsel (see id.). The judge is also disqualified, subject to remittal, in cases involving his/her direct supervisor or the specific town department (if any) in which he/she is employed. For completeness, we note that the judge’s direct supervisor in his/her non-judicial employment with the town is the town supervisor, and the judge already is disqualified, subject to remittal, “when a town board member … who participates in setting the judge’s salary or the court’s budget appears as a litigant or as counsel for a party” or as a witness whose credibility the judge must evaluate (Opinion 16-21).
Note on Remittal
As described in Opinion 16-130 (citations omitted), where permitted, remittal is a three-step process:
As always, remittal is not permitted if any party appears pro se or if the judge doubts his/her ability to be impartial. However, assuming all parties are represented by counsel and the judge wishes to offer an opportunity for remittal, the usual three-step process applies. First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding.