Opinion 20-50

March 19, 2020

Digest:         A part-time town judge may serve on the town’s board of assessment review and its strictly advisory historical preservation commission, subject to disqualification in any matters involving these entities or their determinations or recommendations.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.5(B); 100.6(B)(1); Opinions 19-147; 19-68; 18-78; 11-68; 10-12; 08-121; 07-204; 01-124; 93-34; 90-14; 89-82; 89-156.

Opinion:

         A part-time town judge asks if he/she may serve on the town’s board of assessment review and its historical preservation commission. The assessment review board “meets annually to review appeals filed by property owners related to property tax assessments.” Its decisions are appealable in Supreme Court pursuant to the Real Property Tax Law. The historical preservation commission’s purpose is “to survey the Town and designate historic buildings, sites and landscapes in accordance with guidelines it adopts, and establish a Historical Information and Review Service for the purpose of reviewing applications for any change, alteration or development in regards to any property or landscape designated as historic.”

         To that end, the commission comments on proposed applications that, in its view, “detract from the historic nature of the building or property at issue.” However, the commission’s role is strictly advisory; it has “no power to prohibit [property owners’] plans if they are otherwise acceptable under the law.”¹ It appears the commission must rely on persuasion, rather than confrontation, in order to convince property owners to accept its non-binding recommendations.

         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]). Although all judges must resign to run for elective non-judicial office (see 22 NYCRR 100.5[B]), part-time judges may accept appointment to governmental committees or commissions or other governmental positions even if they are “concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice” (see 22 NYCRR 100.4[C][2][a]; 100.6[B][1]). However, a judge’s extra-judicial activities must not be incompatible with judicial office and must not (1) cast reasonable doubt on his/her capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]).

         In general, part-time judges may accept governmental appointments if compatible with judicial office (see e.g. Opinions 19-147 [city tourism board]; 01-124 [respiratory therapy licensing board]; 89-156 [county fire advisory board]; see generally 22 NYCRR 100.4[A][3]; 100.4[C][2][a]; 100.6[B][1]).

         However, judges must not insert themselves unnecessarily into the center of matters of substantial, local controversy (see e.g. Opinion 18-78). Thus, part-time judges may not serve on entities that handle “political or controversial issues,” such as “a local school board; on zoning or planning boards; on a regional council dealing with the management of natural resources; or as co-chair of a town’s Comprehensive Plan Committee that routinely recommends revisions to the town’s zoning code” (Opinion 08-121 [citations omitted]). Similarly, in Opinion 19-68, we said 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.”

         Moreover, some non-judicial appointments also conflict with judicial office if they involve matters that will ordinarily be heard in the judge’s court. Thus, for example, a part-time town judge may not serve as a member of a village zoning or planning board, “where cases involving violations of village zoning regulations are handled in the town court” (Opinions 89-82; 93-34 cf. Opinion 08-121 [positions of town justice and town director of planning and zoning administration are incompatible, where the non-judicial position is involved in “the daily operation of town government units that are responsible for zoning and land use planning, as well as the administration and enforcement of zoning and land use planning rules”]).

         With these principles in mind, we now turn to this judge’s specific questions.

Assessment Review Board

         We have said a town justice may serve on the town’s tax assessment review board (see Opinion 90-14) or revaluation review committee (see Opinion 10-12 [noting the review is “for fairness and consistency with the NYS assessment guidelines”]).² In Opinion 90-14, the tax assessment review board met “once a year to review property assessment challenges” and its decisions could be appealed to “a state-appointed hearing officer” (id.). As the review board’s decisions did not come before the town court for review and “normally do not involve highly controversial issues,” we said a part-time town justice may serve (Opinion 90-14).

         Here, too, the assessment review board’s decisions may not be reviewed in the town court and the inquiry reveals no unusual local controversies involving the board’s decisions. Accordingly, we conclude this judge may serve (see Opinions 10-12; 90-14). Of course, in the unlikely event that a case before the judge involves the review board or its determinations, the judge must recuse.

Historic Preservation Commission

         In Opinion 11-68, we said a new acting village justice may continue to serve on the town’s architectural review board. While submission of “proposed signs and facades” to the board was mandatory, the board’s “recommendations are advisory” and “the proceedings are largely non-adversarial in nature” (id.).³ We expressly noted the review board’s work “has not been controversial and no litigation involving the review board has occurred during his/her tenure” (id.). Although conflicts were unlikely in the village court, because the review board did not consider any applications affecting properties in the village, we noted the judge was sometimes temporarily assigned to preside in the town court. In such instances, we said the judge “must disqualify him/herself from any matters involving the review board, including zoning matters related to the review board’s recommendations” (id.).

         Here, too, we conclude this town justice may serve on the town’s historic preservation commission, as its function is likewise strictly advisory, with “no power to prohibit” otherwise lawful plans. Indeed, while decisions by the town planning board and zoning board of appeals may be appealed to the Supreme Court, the commission’s comments are non-binding and cannot be enforced or appealed. Because this commission, like the architectural review board in Opinion 11-68, seeks to persuade property owners to adopt its recommendations voluntarily, we understand it is likewise unlikely to become involved in matters of substantial local controversy. Thus, the judge may serve on the commission. However, the judge must disqualify him/herself from any matters involving the historic preservation commission or its recommendations, including any alleged town code violations that may relate to a commission recommendation (see Opinion 11-68).

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¹ The judge says some historic preservation commissions have authority to make binding, enforceable determinations, but this one does not.

² Although paid employment raises additional issues, we note a town justice may also serve as the town’s appointed assessor (see Opinion 07-204 [requiring disqualification, subject to remittal, in cases where the town is a party, due to the judge’s outside employment with the town]).

³ After receiving approval for their renovation or construction plans, commercial property owners in the town had to submit "proposed signs and facades" to the architectural review board for review and non-binding recommendations (Opinion 11-68). The judge noted that "a town enforcement officer could issue a summons if an applicant failed to appear before the review board or disregarded” the review board's advice, but "summonses are rarely issued" (id.).