Opinion 91-124

October 31, 1991

Digest:         A part-time judge’s service on a stop/DWI advisory board is a        conflict of interest and incompatible with his or her duties and responsibilities as a judge presiding over drunk driving cases. The judge should discontinue membership.

Rules:          22 NYCRR §§100.2(a); 100.5(b); 100.4; 100.3(C)(1).

Opinion:

         A part-time judge asks whether it is a conflict of interest to continue involvement as a member of a local stop/DWI advisory board. The judge initially began service on the board as a driver education teacher. Presumably, the functions and objectives of this stop/DWI advisory board are similar to those of other panels, with a goal of punishment of offenders, and the deterrence and reduction of drunk driving related accidents.

         Section 100.2(a) of the Rules of the Chief Administrator of the Courts 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.

         Judges are permitted to participate in a variety of civic activities, as long as their activities “do not reflect adversely upon impartiality or interfere with the performance of judicial duties” (22 NYCRR 100.5[b]). Furthermore, judges may engage in activities to improve the law, the legal system and the administration of justice provided “in doing so the judge does not cause doubt on the capacity to decide impartially any issue that may come before him or her” (22 NYCRR 100.4).

         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.

         While the objectives of this stop/DWI advisory board are praiseworthy, and its members perform an important public service, its objectives and functions are too closely related to the duties and responsibilities of a judge presiding over DWI cases, namely, deterrence and punishment of offenders. Thus, the judge’s two roles 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 presides over DWI cases.

         Since a judge must disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned [22 NYCRR 100.3(c)(1)], the judge’s membership on that board should be discontinued as a possible conflict of interest incompatible with the performance of judicial duties. (See also, Opinion 91-20. Vol. VII, in which this committee found that a part-time judge may not volunteer to help set up a victim impact panel to which the judge would then refer drunk driving defendants as part of their sentence.)