Opinion 93-115

December 9, 1993

Digest:         An appointed part-time judge is disqualified from presiding over a case in which one of the parties or an attorney for one of the parties is a member of the City Council only if the City Council participates in setting the judge's salary.

Rules:          22 NYCRR §§100.2(a); 100.3(c)(1); Canon 3C of the Code of Judicial Conduct.

Opinion:

         An appointed part-time City Court Judge asks whether the judge may preside over matters where one of the parties is a City Council member from the same municipality, or where a City Council member from the same municipality is acting as counsel to one of the parties appearing before the judge. The part-time judge was appointed by the Mayor, and the appointment was approved by the City Council. The inquiring judge does not indicate whether or not the City Council in the municipality is responsible for setting the judge's salary.

         Section 100.2(a) of the Rules of the Chief Administrator requires a judge "to conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

         Section 100.3(c)(1) of the Rules of the Chief Administrator further provides:

A judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned, but not limited to circumstances where:

(iii) the judge knows that, he or she ... has a financial interest ... or any other interest that could be substantially affected by the outcome of the proceeding....

         Moreover, Canon 3C of the Code of Judicial Conduct provides that "a judge should disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned."

         In applying these provisions, this Committee has repeatedly found that a part-time judge must disqualify himself or herself where a public official who participates in setting the judge's salary appears as a party or an attorney before the judge (see, Opinion 91-63, Vol. VII, 90-175, Vol. VI, 88-34, Vol. 11). Thus, if the City Council which approved the inquiring judge's appointment also determines his or her salary, he or she must disqualify himself or herself where a member of the City Council appearing before him or her as a litigant or as an attorney, unless all parties, after full disclosure, consent to the judge's presiding (see, Opinion 90-21 Vol. V).