Opinion 90-120

September 18, 1990

NOTE: Please consult Joint Opinion 08-171/08-174 before relying on this opinion. To the extent that this opinion is inconsistent with Joint Opinion 08-171/08-174 regarding a judge's disclosure/recusal obligations when his/her personal attorney or his/her personal attorney's partners and associates appear in the judge's court, it is overruled.

Digest:         A part-time judge who also is a school guidance director may not preside over cases where the judge’s personal attorney appears or where the school district is a party; and must disclose when a co-worker, one of the judge’s students, or a fellow firefighter in the same fire company as the judge is a party and may grant recusal applications at the judge’s discretion. The judge may serve as chair of a scholarship committee, but the judge’s name may not be used in any fundraising efforts.

Rules:          22 NYCRR 100.3.(c)(1)(i)(iii); 22 NYCRR 100.3(c)(3)(iii); 22 NYCRR  100.3(d); 22 NYCRR 100.5(b)

Opinion: 

         A part-time judge asks several questions concerning the judge’s full-time position as a director of the guidance department at a public school district situated within the area of the town court, and about other private and community activities of the judge. The judge inquires whether it is permissible to preside over matters where the judge’s employer-school district, a co-employee, a student of the judge, or fellow firefighter in the judge’s fire company is a party.

         As an employee of the school district, the judge may appear to have a financial interest in a matter involving the school, because the judge is an active participant in its affairs. Furthermore, there is a reasonable likelihood that the judge may have, or will be perceived to have, knowledge of one or more of the disputed facts in the case. Accordingly, pursuant to section 100.3(c)(1)(i) of the Rules of the Chief Administrator, the judge should be disqualified where the school district is a party.

         Since there is no relationship requiring a per se disqualification, the judge must consider whether there is an appearance of an impropriety in continuing to preside in a case involving a co-employee. In view of the perception that co-employees of a small town school district are well-acquainted with each other, the judge should disclose the facts. In the event of an objection, and if the judge is reasonably well-acquainted with the co-employee party, the judge should seriously consider recusal in order to avoid the appearance of impropriety. However, the ultimate determination rests within the court’s conscience and discretion.

         The Committee believes that disclosure in all cases where the judge’s students are parties is preferred. However, the decision whether to grant or deny a recusal request rests within the court’s conscience and discretion. Such a decision would vary from case to case and would depend on such factors as the quality and nature of the judge’s involvement in the student’s life, the intensity and logic of the arguments offered in favor of recusal, and other pertinent factors. Obviously, recusal should be granted upon request in any matter where a student whom the judge counsels within the school setting is a Party.

         Where a judge is a member of a volunteer fire company and another member of the same fire company appears as a party before the judge, must the judge disclose this fact and recuse him or herself upon request?

         The Committee’s response to this inquiry is the same as the response with respect to the co-employee of the school district.

         As to whether the judge may preside over cases wherein the judge’s personal attorney is representing one of the parties, the inquiring justice is referred to the Committee’s previous Opinion 88-153, published in Volume III of the Committee’s Selected Opinions, where the Committee stated that a judge may not preside when the judge’s personal attorney appears.

         The judge may serve as a county chairperson of a scholarship program. However, since the judge’s name appears on the letterhead as chairperson - albeit in a capacity as a private citizen - and the stationery is used in fundraising efforts, the judge’s name must be removed from the letterhead and other literature when used in connection with any and all fundraising. See 22 NYCRR 100.5(b).