Opinion 91-103

September 12, 1991

Digest:         A part-time lawyer town judge may not represent the town board in negotiating a contract with that town’s police union.

Rules:          22 NYCRR §§100.5(h); 100.5(c)(1); 100.3(c)(1)

Opinion:

         A part-time town judge, who also is a lawyer, inquires whether the judge may represent that town’s board in negotiating a contract with its police union.

         Section 100.5(h) of the Rules of the Chief Administrator of the Courts permits part-time judges to accept other employment that is not incompatible with judicial office.

         Section 100.5(c)(a) states:

A judge shall refrain from financial and business dealings that tend to reflect adversely on impartiality, interfere with the proper performance of judicial duties, exploit judicial position, or involve the judge in frequent transactions with lawyers or other persons likely to come before the court on which he or she serves.

         Section 100.2(a) requires that:

A judge shall respect and comply with the law and shall conduct himself or herself at all times in a manner that promotes public confidence in the integrity, and impartiality of the judiciary.

         Section 100.2(c) states that:

No judge shall lend the prestige of his or her office to advance the private interests of others.

Furthermore, section 100.3(c)(1) mandates that:

A judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned.

         As labor negotiator for the town board, the judge would be acting in an adversarial role against the town’s police union, whose members regularly would be appearing before the judge in the performance of his or her judicial duties. Thus, the two roles would appear to be incompatible and could reasonably create the public perception of a lack of judicial impartiality and an appearance of impropriety, whenever the judge presided over matters in which the town’s police officers appeared.

         Undoubtedly, such officers would frequently appear in the judge’s court, necessitating the judge to recuse himself or herself in a significant number of instances. Consequently, the judge should refrain from that employment pursuant to section 100.5(c)(1) supra, which mandates that a judge abstain from business or financial dealings “that tend to reflect adversely on impartiality, interfere with the proper performance of judicial duties . . . and involve the judge in frequent transactions with . . . persons likely to come before the court in which he or she serves.” (See also, Opinion 90-134, Vol. VI).

         While the inquirer makes no reference to whether the position as labor negotiator for the town is salaried or merely the performance of civic duty, the ethical considerations are the same.

         Accordingly, the judge should not represent the town board in labor negotiations with the police, as it would involve the judge in frequent transactions with persons likely to appear before the judge.