Opinion 23-241

February 1, 2023

Digest:  Where a Lieutenant in the sheriff’s office serves on the town board: (1) a town justice is ordinarily disqualified, subject to remittal, in matters involving the Lieutenant and any deputy sheriffs under that Lieutenant’s supervision; but (2) the judge need not disqualify if he/she is satisfied that a town board resolution or other legal requirement prohibits the Lieutenant from voting or participating in deliberations on any town court matters.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(E)(1)(c); Opinions 23-153; 20-32; 17-105; 15-224; 09-16; 06-01; 90-175.

Opinion:

          A town justice advises that a deputy sheriff who serves in a supervisory capacity as a Lieutenant has become a town board member.  Most of the town court’s Vehicle and Traffic Law and criminal caseload involves the sheriff’s office, and the Lieutenant is the day shift supervisor for the road patrol.  It appears that the town board is already considering “a resolution that would prohibit [its new] member from voting on any matters involving the Court.”  The judge asks about his/her obligations in matters involving deputy sheriffs under the Lieutenant’s command, with or without such a resolution in place. 

          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]).  Also, a judge must disqualify him/herself when the judge’s impartiality might reasonably be questioned, including in instances where the judge knows that he/she has an “interest that could be substantially affected by the proceeding” (see 22 NYCRR 100.3[E][1][c]).

          We have advised that “a part-time judge must disqualify him/herself, subject to remittal, in matters where a Deputy Sheriff, who also serves on the Town Board, appears before the judge as a prosecutor or a witness” (see Opinions 23-153; 09-16; 90-175).  For example, disqualification is required in cases where the accusatory instrument was signed by the town board member (see Opinion 09-16).  We also advised that, where the village police chief is a town board member who may participate in setting the town justice’s salary or the court’s budget, the justice is disqualified, subject to remittal, in any village police case (Opinion 15-224).  Here, too, we conclude that the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]) in matters involving sheriff’s deputies under the Lieutenant’s supervision (see Opinions 15-224; 90-175).  Thus, we conclude that the obligation to disqualify subject to remittal extends to any matters involving sheriff’s deputies who are subject to the supervision of the Lieutenant who serves on the town board (see Opinion 15-224; cf. Opinion 20-32 [“Where an assistant public defender with no supervisory responsibilities serves on the town board that sets the town justice’s salary and the court’s budget, the town justice is disqualified, subject to remittal, in all matters involving that APD but may otherwise preside in cases involving the Public Defender’s office, assuming he/she can be fair and impartial”]).

          We now turn to the question of the judge’s obligations if the town board assures the judge that the Lieutenant will be completely screened from involvement in deliberations concerning the judge’s salary or the court budget by, for example, passing a resolution prohibiting the Lieutenant from voting on any matters involving the court. 

          We have advised that town board member’s abstention or announced intention to abstain from voting on matters involving the court is insufficient to alleviate the appearance of impropriety or perception of partiality (see e.g. Opinions 15-224 [“even if the police chief chooses to abstain from voting on court-related matters, the potential for the public perception of partiality is nevertheless present given that the police chief could, and would be expected to, take part in deliberations on the judge’s salary and the court’s budget”]; 06-01 [noting likely public perception that court bailiff, as town board member, “is in a position to influence the judges’ salaries even though he/she presently intends not to cast a vote on that issue”]).  In both instances, the facts presented no legal requirement that the board member refrain from participating in voting or deliberations, should he/she choose to do so (see id.).

Conversely, we have advised that “[a] town justice need not prohibit his/her law firm employee from serving on the town board, provided the employee agrees in writing to abstain from any matters involving the justice court, including the judge’s salary and the court’s budget” (Opinion 17-105). 

Here, in our view, the passing of a town board resolution that prohibits the Lieutenant-town board member from voting or participating in deliberations on any court matters, including judicial salaries and the court’s budget, can indeed alleviate the appearance of impropriety and consequently, the judge’s obligation to disqualify.  Thus, the judge need not disqualify if he/she is satisfied that a town board resolution or other legal requirement prohibits the Lieutenant from voting or participating in deliberations on any town court matters.