Opinion 24-124

September 12, 2024

Digest:  A town or village justice court may not access or use an online portal created by a for-profit vendor to prosecute and/or adjudicate VTL § 1174-a cases, nor participate in the vendor’s training to implement the program. 

Rules:   VTL § 1174-a; 22 NYCRR 100.0(S); 100.1; 100.2; 100.2(A), (C); Opinions 21-56; 19-145; 19-80; 19-03; 18-41; 15-197(A); 15-197(B); 14-05; 09-160; 08-21; 94-31.

Opinion: 

          The inquiring town justice asks if it is ethically permissible to participate in a program set up by the county under VTL § 1174-a to impose monetary liability on a vehicle’s owner for an operator’s failure to stop for a school bus displaying a red visual signal and stop-arm.  The school bus photo violation monitoring program is run by a private for-profit vendor in cooperation with the police services division of the county’s department of emergency services.   In essence, the for-profit vendor installs cameras on school buses, collects photographs of alleged stop-arm violations, reads the photographed license plates, and sends a Notice of Liability and Civil Penalty to the vehicle’s owner.  Because the county does not have a traffic violations bureau, the civil proceedings come before the county’s town and village courts for adjudication (see VTL § 1174-a[4][h]).  If an owner wishes to dispute the violation, the outside vendor uploads an “electronic evidence package” and unilaterally sets the court date and time for the hearing.  The court clerk and/or judge must access the vendor’s online portal to learn that a hearing has been scheduled, view the evidence, conduct the hearing, and then report the court’s findings through that same portal/website.  The courts do not keep any portion of the civil penalties.  The vendor is now offering training sessions on the system exclusively for the judges and court clerks.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must uphold and promote public confidence in the judiciary’s integrity and independence (see 22 NYCRR 100.1; 100.2[A]; see also 22 NYCRR 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control.”]).  A judge must not “convey or allow others to convey the impression that they are in a special position to influence the judge” (22 NYCRR 100.2[C]).

          In our view, town and village justices and their court clerks should not access or use an online portal created by a for-profit vendor, nor be trained by that vendor to implement the county’s school bus stop-arm violation monitoring program. 

          This program run by a for-profit company impermissibly intrudes upon the independence of the judiciary.  We have previously advised that courts “may not compromise their ethical obligations to mitigate the challenges that prosecutors or law enforcement officers face” (Opinion 09-160).  Thus, judges must not “allow the state police to determine trial dates in vehicle and traffic law cases to avoid incurring overtime costs associated with court appearances” (id.).  Nor may judges “facilitate a traffic ticket plea reduction program instituted by the District Attorney’s office that would interfere with the court’s exercise of judicial review and discretion” (Opinion 19-145).  We have further advised that “the actual procurement of evidence sought or needed by a party, in support of or opposition to a disputed claim, goes beyond the judge’s role as a neutral arbiter” (Opinion 19-03; see also Opinions 15-197[A]; 15-197[B]).

          Moreover, we have said a judge may not participate in a training program where its overall purpose and context suggests it is a one-sided, law enforcement program, such as one designed to “maximize enforcement” or enhance conviction rates (see Opinions 18-41; 08-21; 94-31).  Thus, when advising that a judge may participate in a county-run sexual harassment prevention training program, we emphasized the specific factual details which made it “unlikely to be perceived as a law enforcement or prosecution-oriented program or otherwise cast doubt on the judge’s ability to be impartial” (Opinion 19-80).  Nor does the participation of a for-profit vendor here ameliorate the appearance of impropriety (cf. Opinion 14-05 [“It is impermissible to host a court website on a social network that will display third-party advertisements in connection with the court’s page.”]). 

          As described, the proposed participation by judges and court clerks in the program would involve abdicating the courts’ role in scheduling and managing caseloads to a for-profit entity.  A for-profit vendor is running the program in consultation with a quasi-law enforcement agency that presumably has an interest in enforcing and collecting civil penalties.  Judges’ participation in the training conducted by the for-profit company assisting the county in administering the civil penalties would create an appearance of impropriety as no entity or persons representing the interests of the vehicle owners would be present. 

          To the extent that we previously declined to address the propriety of participating in a school bus stop-arm violation monitoring program on the facts then presented (see Opinion 21-56), we now conclude it is not ethically permissible to access or use an online portal created by a for-profit vendor and to be trained by that vendor to implement the program.