Opinion 90-79

September 18, 1990

Digest:         A part-time judge may not seek re-election to a local school board, and should resign from the board.

Rules:          22 NYCRR §100.7; Canon &(A)(3) Code of Judicial Conduct.

Opinion:

         A part-time judge who was elected to the local school board before becoming a judge, inquires concerning the propriety of seeking re-election to the local school board. The school district encompasses a number of towns including part of the town within the judge’s jurisdiction, and the judge’s candidacy is unopposed.

         Section 100.7(c) of the Rules of the Chief Administrator provides:

No judge, during a term of office, shall hold any office in a political party or organization or contribute to any political campaign or take part in any political campaign except his or her own campaign for elective judicial office. Political activity prohibited by this section includes:

(c) Participation, either directly or indirectly, in any political campaign for any office, except his or her own campaign for elective judicial office.

         Local school boards, both in urban and rural areas, are subjects of wide-spread community interest. One of their principal functions is approval of budgets and fixation of school taxes, which are subject to controversy. School board members may be at the center of such controversies and the object of public criticism.

         Although the judge states that the school board district is a small part of the jurisdiction of the court, local attention focused on the school board could spread to the rest of the judicial area and to surrounding towns as well. Thus, the judge could be highly visible in educational controversies, which could be inconsistent with judicial duties. That the judge is unopposed for re-election does not preclude controversy while serving as a board member.

         In Joint Opinion 89-157 and 90-7 (January 18, 1990) this Committee found that a judge who is a member of the local school board must immediately resign from that position. The Committee reaffirmed those Opinions more recently in an extensive Opinion on this subject, Opinion 90-63. Accordingly, as the judge’s membership on the school board is incompatible with his judicial duties, the judge should immediately resign from the school board.

         Further, Canon 7A(3) of the Code of Judicial Conduct as adopted by the New York State Bar Association provides (with certain inapplicable exceptions) that:

A judge should resign his office when he becomes a candidate either in a party primary or in a general election for a non-judicial office . . . .

         Thus, the judge cannot both retain his office as judge and be a candidate for election to the school board.