Opinion 19-68

June 20, 2019

Digest:         A part-time judge may serve on a town’s ad hoc committee to establish a process to determine which privately owned real properties may be sold to another governmental entity, provided the issues do not become matters of substantial public controversy.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1); 100.4(A)(3); 100.4(C)(2)(a); 100.4(C)(3)(a)(I); 100.6(B)(1); Opinions 18-183; 15-188; 07-155/98-31; 99-74.

Opinion:

         A part-time judge asks if he/she may volunteer on an ad hoc town committee. Certain local landowners wish to sell their properties to another governmental entity, and the town seeks to “weigh[] both the rights of the property owners ... and the long term interests of the [t]own,” including possible impacts on the tax base and compliance with the town’s legal obligations. The committee’s purpose is to “look into, consider, and establish criteria and guidelines for which parcels should be considered for buyout.” Thus, the committee will not make individual parcel recommendations or decisions, but will instead propose a process or “initial structure” for those determinations. The committee will be disbanded once the town adopts the rules. The judge believes the committee’s work will not be controversial, and says he/she would resign “should any such matters of public controversy develop.”

         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’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), and thus a judge’s extra-judicial activities must not cast reasonable doubt on his/her capacity to act impartially as a judge (see 22 NYCRR 100.4[A][1]) or interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][3]). Among other restrictions, a judge must not “serve as an officer, director, trustee or non-legal advisor if it is likely that the organization ... will be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][I]). Unlike a full-time judge, however, a part-time judge may accept appointment to a governmental committee concerned with issues of fact or policy unrelated to the law, the legal system, or the administration of justice (see 22 NYCRR 100.4[C][2][a]; 100.6[B][1]).

         We have said a town justice must decline appointment to the town’s water advisory committee if there is a substantial likelihood the committee will be involved in matters of public controversy (see Opinion 99-74). There, because the inquiring judge said the committee’s work would likely become controversial, we concluded such service would be incompatible with judicial office (id.).

         More recently, we said a town justice may serve on a committee that examines and reviews laws in relation to the merger of another municipality into his/her town (see Opinion 18-183). We concluded the judge’s participation was unlikely to involve him/her “in partisan political issues or on matters of great public controversy that are likely to raise reasonable questions about [the] judge’s ability to be fair and impartial” (id.), unlike engaging in redistricting-related activities (see Opinion 15-188) or serving on a charter review commission (see Opinion 07-155/98-31).

         As the committee will merely be setting up a process for making decisions, leaving the actual implementation and decision-making to others, and the judge does not foresee any public controversy arising from the committee’s actions, the judge may serve on the committee. Nevertheless, we recognize that matters concerning public and private property, especially if intertwined with environmental issues, can inflame public passions. In the event the committee’s actions do become a matter of public controversy, the judge must resign from the committee.