Opinion 89-82

January 18, 1990

Digest:         A part-time town judge may not serve as a member of a village zoning orplanning board, where cases involving violations of village zoning regulations are handled in the town court.

Rules:           22 NYCRR 100.2(a); 100.5(b)(1); 100.5(h)

Opinion:

         A part-time town judge inquires whether such a judge may serve as a member of the village zoning and planning boards. All zoning cases are brought in the town court where the judge serves. There are no village courts in this town, so that the town court handles violations of village zoning regulations.

         Section 100.2(a) of the Rules of the Chief Administrator provides that a judge must avoid impropriety and the appearance of impropriety. The Executive Committee of the New York State Magistrates Association has advised this Committee of its opinion that there would be a conflict of interest were a judge to preside over zoning violation prosecutions and also to sit on a zoning or planning board.

         Section 100.5(b)(1) of the Rules of the Chief Administrator provides that a judge may not participate in civic activities or in organizations “if it is likely that the organization will be engaged in proceedings that would ordinarily come before him or her or will be regularly engaged in adversary proceedings in any court.” In addition, section 100.5(h) of the Rules provides that a part-time judge may not accept public or private employment that is incompatible with the performance of judicial duties. Incompatibility includes giving rise to an appearance of impropriety.

         This committee concludes that, even if the judge recuses himself from zoning violation cases, an appearance of impropriety exists if the judge serves on these boards within the jurisdiction where he or she also sits as judge. This appearance of impropriety exists even where no actual conflict arises and even though no illegality attaches to the holding of both offices.