Opinion 92-87

September 24, 1992

Digest:         A Surrogate Judge may appoint the spouse of a Supreme Court Justice as a successor trustee, if the appointee is fully qualified for the appointment.

Rules:          22 NYCRR 100.2(a) and 100.2(b)(4)

Opinion:

         A Surrogate Judge inquires whether it would be improper to appoint the spouse of a Supreme Court Justice as a successor trustee of a charitable trust pursuant to authority granted to the Surrogate under the trust agreement. The appointee will in all likelihood receive substantial fees each year for serving as trustee. According to the documents submitted with the inquiry, the proposed appointee is fully qualified, by training and experience, to perform the duties of the position and the only impediment to the appointment is the proposed appointee’s marital relationship.

         Section 100.2(a) of the Rules of the Chief Administrator provides in pertinent part:

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.

         More specifically, section 100.2(b)(4) of the Rules state that:

A judge shall exercise the power of appointment only on the basis of merit, avoiding favoritism. A judge shall not appoint or vote for the appointment of any person as a member of his or her staff or that of the court of which the judge is a member, or as an appointee in a judicial proceeding, who is a relative within the sixth degree of relationship of either the judge or the judge’s spouse. A judge shall also refrain from recommending a relative for appointment or employment to another judge serving in the same court.

         The proposed appointment of the spouse of another judge does not contravene the letter of the Rule. In deciding whether the proposed appointment would violate the spirit of the Rule or otherwise give the appearance of impropriety, the Committee has considered that public policy favors that individuals should be judged and treated on their own merits, without regard to marital status (Executive Law, §296[1][a]). Since the proposed appointee appears to be fully qualified for the appointment, it would not be improper to make the appointment merely because of the appointee’s marital relationship to the judge of another court. It should be noted that section 36.1(b)(1) of the Rules of the Chief Judge [22 NYCRR] does not apply in this situation involving an appointment of a trustee of a foundation.