Opinion 90-175

December 11, 1990

Note on terminology: This Opinion uses the term "town council" as a synonym for "town board."

Digest:         A part-time judge should disqualify himself or herself in contested matters where a deputy sheriff, who also is on the town council, appears as prosecutor or witness, where the deputy sheriff, as town council member, participates in fixing the judge’s salary, but the disqualification may be waived by consent of the parties. The judge may cook, clean and serve at a fundraising dinner held by a social organization, but may not sell tickets or serve as a speaker.

Rules:          22 NYCRR 100.2(a); 100.3(c)(1); 100.3(d)

Opinion:

         A part-time judge inquires whether the judge is disqualified from presiding in matters where a deputy sheriff, who also is a town council member who participates in fixing the judge’s salary, appears before the judge. The deputy sheriff writes many summonses and frequently testifies in the judge’s court, which has two judges.

         Section 100.2(a) of the Rules of the Chief Administrator requires a judge “to conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”.

         Section 100.3(c)(1) of the Rules provides:

A judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned, but not limited to circumstances where:

(iii) the judge knows that, he or she, ... has a financial interest or ... any other interest that could be substantially affected by the outcome of the proceeding. (emphasis added)

         Joint Opinion 88-17(b)-88-34 and Opinion 88-41, all Vol. 11, advise that when a town council or board member appears in any type of action before the judge, if such member participates in setting the judge’s salary, the judge should disqualify himself or herself to avoid the appearance of impropriety.

         Although this town council member does not appear in a private capacity, nevertheless, the judge is required to evaluate his or her credibility and conduct. This could possibly create the public perception of partiality by influencing, either way, the council member's vote on the judge's salary.

         However, section 100.3(d) of the Rules of Judicial Conduct further provides:

A judge disqualified by the terms of subparagraph (c)(1)(iii), (iv) or (v) of this section, instead of withdrawing from the proceeding, may disclose on the record the basis of the disqualification. If based on such disclosure, the parties (who have appeared and not defaulted), by their attorneys, independently of the judge's participation, all agree that the judge’s relationship is immaterial or that his or her financial interest is insubstantial, the judge no longer is disqualified, and may participate in the proceeding. The agreement shall be in writing, or shall be made orally in open court upon the record.

         Thus, it is not necessary that the judge be disqualified when the sheriff appears, if the parties agree, in writing or on the record, to the judge’s participation. See also Opinion 88-126, Vol. 11.

         The judge’s second inquiry concerns the propriety of selling tickets, acting as host, parking cars, pouring coffee, cleaning up and preparing food in connection with a fundraising dinner sponsored by a social organization.

         Section 100.5(b)(2) prohibits judges from soliciting funds for charitable and civic organization. However, most of these proposed activities at the dinner are permissible, as they are de minimis. However, the judge may not sell tickets, and the judge may act as host only if that duty involves showing people to their seats. If the judge is a speaker, then serving as a host at a fundraising dinner is impermissible.