Opinion 96-65

June 13,1996

Digest:         The acceptance by a full-time judge of a gubernatorial appointment to the New York State Motor Vehicle Theft and Insurance Fraud Prevention Demonstration Board would be incompatible with judicial office.

Rules:          New York State Constitution, Art. VI, sec. 20; 22 NYCRR 100.1; 100.2 (A).

Opinion:

         A full-time judge states, as follows:

         I am a Justice of the New York State Supreme Court. . .The Speaker of the Assembly, Sheldon Silver, has recommended me for appointment to the Motor Vehicle Theft and Insurance Fraud Prevention Demonstration Board (Chapter 170 of the Laws of 1994, Executive Law, Article 36-A, Sections 846-i through 846-m, copy of statute enclosed). The purpose of this board is “to provide an integrated means to prevent, deter and reduce the incidents of automobile insurance fraud by developing and providing funding for demonstration programs which include education on theft and fraud prevention, programs on automobile theft and insurance fraud prevention and specialized law enforcement units to combat automobile theft and insurance fraud.” Executive Law Section 861-1, subdivision 2, of enclosed statute states that the members of the board “shall be representative of consumers of automobile insurance, automobile insurance companies, law enforcement agencies and the judicial system.” This board shall be part of the Division of Criminal Justice Services. Members of the board serve without compensation except that non-public officials shall be entitled to reasonable reimbursement for expenses. The board will meet at least four times a year.

         The inquiring judge asks whether it is appropriate for him/her to accept an appointment to the Board.

         It is the opinion of the Committee that it would not be appropriate for the judge to accept such an appointment. Based on the statute itself, it appears that such service is incompatible with judicial office. A primary purpose of the statute is to develop a plan, and make recommendations for the purpose of providing funding for certain specified purposes and agencies, including “specialized law enforcement units” (Exec. Law § 846-j). Activities eligible for such funding include “prosecution and adjudication services” and “law enforcement services” (Exec. Law § 846-m (2) (c).

         In the view of this Committee, a judge should not participate in an official, governmental capacity in an activity that is explicitly passing upon and approving the funding of prosecution and law enforcement activities. Such participation could readily be perceived as drawing into question the independence of the judiciary, (22 NYCRR 100.1) and casting doubt on the impartiality of the judiciary (22 NYCRR 100.2 (A)).

         Moreover, the dangers associated with such an appointment are not, in this instance, overcome by the claim that it is being made pursuant to a statutory mandate. The statute does not require the appointment of a judge. Rather, it states that the members of the Board “shall be representative of consumers of automobile insurance, automobile insurance companies, law enforcement agencies and the judicial system.” (Exec. Law § 846-l (2)). There is nothing in the statute which requires that the person or persons chosen as representing the judicial system must be members of the judiciary, i.e., judges.

         Finally, the Committee notes that the appointment in question is a gubernatorial appointment to a board that is part of an executive agency - i.e., the Division of Criminal Justice Services. Article VI, section 20 (b) (1) of the New York Constitution provides that a justice of the Supreme Court may not “hold any other public office or trust except an office in relation to the administration of the

courts. . .”. Because the position in issue constitutes a “public office”, it may not be held by a Supreme Court Justice.