Opinion 22-106

June 30, 2022

Digest:         A town judge should not accompany town board members and/or engineers to visit property owners and provide information about a project that benefits the judge’s outside employer.

Rules:          Town Law § 83; 22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C).

Opinion:

         The inquiring part-time town justice is also full-time in-house counsel at a not-for-profit corporation that funds various projects. The judge advises that the town has received a block grant from the judge’s outside employer for a town project. The judge’s outside employer will administer the grant by retaining an engineer to design the project and outside counsel to assist with related legal issues including town law compliance and a referendum.

         As part of the project, the town will likely schedule a non-partisan referendum at which property owners within the town (including the judge) can vote for or against a necessary element of the project. The town will likely administer the voting for the referendum with the funding from the judge’s outside employer. The referendum will be held on a date other than primary or general election dates and a number of election inspectors and ballot clerks may be required (see generally Town Law § 83).

         The judge asks if it is permissible to accompany town board members and/or engineers to visit property owners and provide information about the project prior to the referendum date. The judge would not be paid by the town for such work and any payment made by the judge’s outside employer would not be billed against the block grant designated for the project.

         A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), 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]). Further, a judge must not lend the prestige of judicial office to advance any private interest (see 22 NYCRR 100.2[C]).

         The proposed door-to-door visit to explain the project to local property owners is likely to be seen as an attempt by the judge’s outside employer and/or the town board to obtain public support for a potentially controversial project and referendum. In our view, the judge’s participation in this outreach effort on behalf of the judge’s outside employer may cast doubt on the judge’s impartiality, create an appearance of impropriety and may be viewed as the judge lending the prestige of judicial office to advance the private interest of the outside employer. Therefore, the judge should not accompany town board members and/or engineers to visit property owners and provide information about the project prior to the referendum date.