Opinion 24-177

December 12, 2024

Digest:  An associate village justice may not continue to serve as village mayor, even in another village.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(A); 100.5(A)(1); 100.5(B); 100.6(B)(4); Opinions 11-22; 03-135; 02-86; 90-92; 90-79; 90-63; 89-72.

Opinion: 

          The inquiring village mayor is being considered for an appointive position as associate village justice in a different village within the same town.  The inquirer thus asks if he/she may serve as a part-time associate justice of one village while simultaneously serving as mayor of a different village.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]).  A judge must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]) and must likewise “resign from judicial office upon becoming a candidate for elective nonjudicial office” (22 NYCRR 100.5[B]).  A part-time judge may accept public employment in a “municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]).

          We have, in several instances, gone beyond the resign-to-run rule (22 NYCRR 100.5[B]), and required newly elected or appointed part-time judges to resign from elective nonjudicial offices they already held.  For instance, we said a judge who had previously been elected to the board of a public library “in a general election in which all voters in the municipalities are entitled to vote … should resign from the board” (Opinion 02-86).  Likewise, we said a part-time judge who was previously elected to a board of commissioners for a fire district in a public election “may not serve out the remaining years of his/her term where the fire commissioners’ primary function is to submit the fire company’s budget for public hearing, modification and approval” (Opinion 11-22).  We also advised that a part-time judge may not seek re-election to or serve on a local school board, but must instead resign from the board (see Opinions 90-79; 90-63).  In reaching this conclusion, we noted that judges “must forego certain significant rights and privileges, including the right to participate in political matters, in order to maintain actual and perceived neutrality and objectivity” (Opinion 90-63 [citation omitted]).  Indeed, in advising that an “appointed acting village justice” may not serve on a local elected school board, we emphasized that service on the school board would “likely cause a judge to be confronted with political issues and matters of public controversy” (Opinion 03-135).

          Significantly, we have advised that a part-time judge who was elected to the town board prior to election to judicial office “may not continue to serve” on the town board (see Opinion 90-92).  Here, too, we reasoned that the town board position “may involve controversial legislative and political matters which may incur significant publicity” and thus the positions of part-time judge and town board member are incompatible (id.).  Accordingly, we concluded the judge “must resign from one of the two positions” (id.). 

          The same principles apply here.  In our view, the position of village mayor is ethically incompatible with simultaneous service as an associate village justice, even in an entirely different village within the same town.  The fact that the role of associate village justice is an appointive position rather than an elective one does not change the result (cf. Opinion 03-135).  Thus, the inquiring village mayor may not continue to serve in that position if he/she accepts the position of associate village justice; he/she must choose between the two positions.  

          In light of this conclusion, Opinion 89-72 is overruled to the extent it permits a newly elected village justice to finish out their term as a village trustee.