Opinion 87-28(b)

March 14, 1988

Topic:          Extra-judicial Appointment; Conflict of Interest.

Digest:         A judge with criminal jurisdiction should not be a member of a County Traffic Safety Board, when fines levied by the judge go to one of that Board’s programs.

Rules:          100.5(g); 100.3

Opinion:

         The Committee has been asked whether a judge of a local court exercising criminal jurisdiction may continue to serve as a member of the County Traffic Safety Board.

         The County Traffic Safety Board controls the expenditures of the STOP DWI Program. Any fines that the judge may impose will be returned to the STOP DWI Program. Should the judge resign from the County Traffic Safety Board? Should the judge disqualify himself from presiding over DWI cases?

         Rule 100.5(g) of the Rules of the Chief Administrator of the Courts [Canon 5(g) of the Code of Judicial Conduct] reads as follows:

Extra-Judicial Appointments. No judge shall accept an appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system or the administration of justice. A judge, however, may represent his or her country, state or locality on ceremonial occasions or in connection with historical, educational and cultural activities.

         It is clear that a substantial part of the work of the County Traffic Safety Board is related to the “improvement of the law, the legal system or the administration of justice” since one of the primary functions of the County Traffic Safety Board is to recommend legislative changes to existing traffic rules, regulations and laws. [Vehicle and Traffic Law §1675(4)]. Thus, membership on the County Traffic Safety Board by a judge should not be prohibited in all cases.

         However, for a judge with criminal jurisdiction, membership on a County Traffic Safety Board is patently improper. As one of its many functions, the County Traffic Safety Board assists in the operation of and controls the expenditures of the STOP DWI Program. Pursuant to Vehicle and Traffic Law §1678-a(1) all fines imposed by a judge for violations of VTL §§1192, 511(2)(A)(i), (iii), and 511(3) are to be returned to the STOP DWI Program. Therefore, if the judge presides over a DWI case, any fine he imposes will be remitted to the STOP DWI Program which is controlled by the County Traffic Safety Board of which he is a member.

         Such a situation presents a conflict of interest and clearly gives the appearance of impropriety. For example, although the imposition of a fine is mandatory in a DWI case, it could appear that the judge’s connection to the STOP DWI Program may influence the amount of fine imposed.

         As the Committee has determined that the judge’s membership on the County Traffic Safety Board presents a conflict of interest with his presiding over DWI cases, it is the Committee’s opinion that the judge should resign from the County Traffic Safety Board rather than disqualifying himself from presiding over DWI matters.

         Rule 100.3 of the Rules of the Chief Administrator of the Courts [Canon 3 of the Code of Judicial Conduct] provides that “the judicial duties of a judge take precedence over all his other activities. Judicial duties include all the duties of a judicial office prescribed by law”.

         In this case, the judge’s duty to preside over all matters which appear before him, including DWI cases, must take precedence over his membership on the County Traffic Safety Board.

         This Opinion is advisory only and is not binding upon either the Office of Court Administration or the Commission of Judicial Conduct.