Opinion 22-51

May 5, 2022

Digest:         A full-time judge who previously served on a town’s zoning board is disqualified on all matters which were pending before the board during the judge’s tenure. However, the judge may preside in other matters involving the zoning board, assuming the judge is satisfied they can be fair and impartial, and disclosure is entirely discretionary.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(ii); 100.3(E)(1)(c); 100.3(E)(1)(d)(ii); 100.3(E)(1)(e); 100.3(F); Opinions 21-22(A); 19-49; 19-01; 16-43; 14-58; 89-104; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge recently resigned from a town’s zoning board before assuming full-time judicial office. The judge anticipates there will be cases “where defendants/respondents are alleged to have not complied with the [zoning board’s] decisions and have been issued summonses.” The judge asks if they must recuse on those cases, or whether the judge may “hear them as [the judge] would if someone was alleged to have violated” the judge’s prior judicial order.

         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]). A judge must disqualify in any proceeding in which “the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]), including when the judge is an officer, director or trustee of a party (see 22 NYCRR 100.3[E][1][d][ii]), has personal knowledge of disputed evidentiary facts concerning the proceeding (see 22 NYCRR 100.3[E][1][a][ii]), has an interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c]), or is likely to be a material witness in the proceeding (see 22 NYCRR 100.3[E][1][e]).

         Clearly, a judge who is currently an officer, director or board member of an entity may not preside over any matters in which the entity is a party (see e.g. Opinion 19-01 [citations omitted]). We now consider the effect of former service on a zoning board.¹

Prior Involvement or Knowledge

         We have advised that a full-time judge who previously served on the board of a public benefit corporation is disqualified, subject to remittal, “on all matters on which [the judge] was briefed or involved as a board member” (Opinion 19-01). As we explained, when uncompensated service on the board results in knowledge about a specific matter in controversy, “there is an appearance that the judge may have ‘personal knowledge of disputed evidentiary facts’” (id. [citation omitted]). “Even if the judge does not, in fact, have such personal knowledge, the appearance of personal knowledge might reasonably cause the judge’s impartiality to be questioned” (id.). Similarly, we said that resignation from the public benefit corporation “does not dispel an appearance of impropriety for matters in which the judge was briefed or had other involvement as a board member” (id.). Accordingly, the judge must disqualify in such matters.

         The same principles apply here. Thus, where a defendant/respondent is alleged to have not complied with a town zoning board decision, and that underlying matter came before the town zoning board during the judge’s tenure on the board, disqualification is required. The disqualification may be subject to remittal after full disclosure on the record, should the parties and their counsel choose to freely and affirmatively consent to the judge presiding (see Opinions 19-01; 21-22[A] [describing the remittal process]; 22 NYCRR 100.3[F]).

No Prior Involvement or Knowledge

         On all other matters involving the town zoning board, i.e. those that did not come before the board during the judge’s tenure and on which the judge was not briefed as a member of the zoning board, the judge may preside if they can be fair and impartial (see id.). In other words, we believe the judge’s impartiality cannot “reasonably be questioned” in all matters involving the zoning board, without more, merely because the judge previously served as an uncompensated board member (id.). Where objective standards do not mandate disqualification, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         The judge may, in their sole discretion, choose to disclose their former involvement on the zoning board. The judge continues to retain full discretion about whether to preside, even if the parties object (see Opinion 19-01). Of course, the judge must disqualify if the judge doubts their own ability to be fair and impartial in a particular matter (see id.).

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¹ We decline the judge’s invitation to analogize prior involvement in a matter as a member of a zoning board (i.e. an extra-judicial or non-judicial activity) with prior involvement in a matter in the judge’s official judicial capacity. As we have noted, “[t]here is no per se requirement for disqualification of a judge based on the judge’s having learned facts about a matter in a judicial capacity” (Opinion 89-104 [emphasis added]; see also e.g. Opinions 19-49; 16-43; 14-58). It is significant, for ethics purposes, when a judge’s knowledge of a matter has an extra-judicial source.