Opinion 94-61

June 16, 1994

Digest:         A part-time judge should disqualify himself or herself in matters where a private litigant is also a Town Board member, if the Town Board member participates in fixing the judge's salary. However, the judge may preside over any such matters if all parties consent.

Rules:          22 NYCRR 100.2(a); 100.3(c)(1); 100.3(d)

Opinion:

         A part-time judge inquires whether the judge is disqualified from presiding over matters where a party litigant is the owner of a local tavern, which is the subject of litigation, and is also a Town Board member.

         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 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 (emphasis added).

         Joint Opinion 88-17(b), 88-34, Opinion 88-41, Vol. II and Opinion 90-175, Vol. VI, advise that where a Town Board member appears in any type of action before the judge, and such member is a participant in setting the judge's salary, the judge should disqualify himself or herself to avoid the appearance of impropriety.

         Here, the Town Board member is appearing in a private capacity. Thus, the judge will be evaluating his or her credibility and conduct. If the Board member votes on the judge's salary, this could create the public perception of partiality.

         However , section 100.3(d) of the Rules of Judicial Conduct further provides:

A judge disqualified by the terms of subparagraph (c)(1)(iii), (iv) or (v) of this section, instead of withdrawing from the proceeding, may disclose on the record the basis of the disqualification. If based on such disclosure, the parties (who have appeared and not defaulted), by their attorneys, independently of the judge's participation, all agree that the judge's relationship is immaterial or that his or her financial interest is insubstantial, the judge no longer is disqualified, and may participate in the proceeding. The agreement shall be in writing, or shall be made orally in open court upon the record.

         Thus, it is not necessary that the judge be disqualified from presiding over the matter, if the parties agree, in writing or on the record, to the judge's participation.