Opinion 92-39

May 1, 1992

Please Note: This opinion is significantly modified by Opinion 18-181, which concludes “a town or village justice whose spouse is a member of the local zoning board of appeals may preside in local code enforcement matters even if the defendant has sought or will seek a zoning variance, as long as (1) the zoning board of appeals is not a party to the proceeding and (2) its members are not likely to be called as witnesses.  Neither disclosure nor disqualification is required.”  Please review Opinion 18-181 before relying on this opinion.

Digest:         A part-time judge, whose spouse is a member of the zoning board of appeals, may not preside over any lawsuit involving the enforcement or interpretation of the board's decisions in which the spouse participated, unless the parties consent after disclosure of the spousal relationship.

Rules:          22 NYCRR §§100.3(c)(1)(iv)(a); 100.3(d); 100.2(a); 100.2(b).

Opinion:

         A part-time judge is married t o a member of the town's zoning board of appeals, and inquires whether the spouse must resign as a board member because of the judge's judicial position.

         Section 100.3(c)(1)(iv)(a) of the Rules of the Chief Administrator of the Courts requires a judge to offer recusal when the judge's spouse is "an officer, director, or trustee of a party." However, section 100.3(d) permits a judge to continue presiding in any such case, so long as the relationship has been disclosed to the parties who thereafter consent to the judge's continuing to preside in the case.

         Here, the judge must disclose the spousal relationship in any case of the zoning board where the spouse has participated in the decision at issue. Should the parties then waive recusal after disclosure, the judge may sit. Otherwise, the judge must transfer the matter to the other judge in the town.