Digest:  (1) Neither a part-time local judge nor the judge's law firm should serve as the attorney for the same municipality where the judge sits if there is any likelihood that matters involving the municipality, including enforcement of local laws, will come before the court. (2) A judge should not serve as member of or counsel to a municipality's Zoning Board of Appeals.
 

Rule:  22 NYCRR 100.1; 100.6(B)(2), (3), (4);
           Opinions 99-104; 98-51 (Vol. XVI);
           97-24 (Vol. XV); 93-34 (Vol. XI);
           91-147 (Vol. VIII); 91-90 (Vol. VIII);
           90-165 (Vol. VII); 90-109 (Vol. VI);
           90-3 (Vol. V); 89-82 (Vol. V).
 
 

Opinion:

            Three part-time judges, each a judge in a different town, have asked for the Committee's opinion on the question of holding two or more governmental positions on behalf of the same political entity. In each instance the judge is serving (or wishes to serve) the town both as judge and in some other official capacity dealing with local law. The inquiries are of sufficient similarity as to warrant a joint opinion.

            In inquiry 99-162, the part-time town judge asks whether it is permissible for the judge or another member of the judge's law firm to serve simultaneously as town attorney. According to the judge, it has been extremely rare "for the town attorney to pursue code violations in town court," but the judge acknowledges that "the town's code does allow for certain matters to be prosecuted as violations or crimes, which would mean that they could be prosecuted in town court." In inquiry 00-63, the part-time town justice, who is also a lawyer, and wishes to continue as town attorney, states that any violations of the town code are heard by the inquirer's co-judge, and are prosecuted by the town prosecutor.

            In addition, the judge in 99-162 serves as counsel to the town's Zoning Board of Appeals. There is no occasion under which a decision of the zoning board would be challenged in the town court and the zoning board is not responsible for prosecuting zoning violations. Any litigation would be in the Supreme Court by way of a Article 78 proceeding. The judge asks, "(i)s it proper . . . to continue as counsel to the zoning board while also remaining as town justice?"

            In inquiry 99-180, the newly-elected town justice asks if he or she may continue as a member of the town's Board of Appeals. Although there is no formal town zoning code, matters involving restrictions on property use are in the town code, and requests for variances are heard by the town's Board of Appeals. The Board appears to be the functional equivalent of a Zoning Board of Appeals and this opinion treats it as such.

            The question of whether a part-time judge or the judge's law firm may serve as the attorney for the same municipality where the judge sits appears to have been specifically addressed in only one opinion previous to the present inquiry. In Opinion 91-147 (Vol. VIII), the Committee advised that "(t)he firm may not accept appointment as the town's attorneys because the town would then be the client of the firm, including the inquiring judge, and the inquiring judge would have to disqualify himself or herself in all matters involving the town. As the town appears frequently in the judge's court, this would result in too many disqualifications by the judge." (See also Opinion 98-51 (Vol. XVI) [town judge should not serve as village attorney for a village within the town where regular appearances in the town court are required]; Opinion 97-24 (Vol. XV) [town judge may serve as village attorney for a village within the town, where the village has been a party in the town court once in three years.]).

            In two other opinions the Committee addressed the question of the propriety of presiding over criminal or police matters. In Opinion 90-165 (Vol. VII), the Committee stated that a village judge who was also town attorney "is not precluded from presiding over a criminal matter where the prime witness is the crime victim, even if the town police officer processed the arrest." But in Opinion 90-109 (Vol. VI), the Committee said that ". . . as the [village] judge is also the town attorney for the town which employs the police officer, the judge's impartiality could be questioned. Thus, the judge should be disqualified in any case involving the town police department, and may not preside over the case, even if all parties consent."

            As to the question of judicial involvement in town matters, including the enforcement of local laws, the Committee in Opinion 95-85 (Vol. XIII), advised a village judge not to attend "working sessions" of the Village Board which included the chief of police, village attorney and town prosecutor for the purpose of discussing local laws, since "such a meeting appears to be heavily slanted toward prosecution of such laws." In Opinion 99-104, the Committee stated that a village justice should not attend the village's monthly "department heads" meeting, presided over by the mayor. In the view of the Committee, "(t)he judge's attendance at the monthly meetings would, in effect, erroneously identify the judge as a member of the executive branch of the local government serving under the direction of the Mayor. Such a role would not only jeopardize the independence of the judiciary but would also give rise to an appearance of impropriety."

            We are now of the view that a distinction should be drawn between, on the one hand, a town judge serving as a village attorney or a village judge serving as a town attorney, and, on the other hand, a town or village judge serving as the attorney for the political entity covering the court on which the judge serves. Consideration of the issue goes beyond the question of frequency of disqualification and raises a concern as to an appearance of a merger of executive and judicial roles, thus calling into question the independence of the judiciary. 22 NYCRR 100.1. That problem is not present where a local judge is serving as the attorney for a different locality.

            The judges could not, of course, appear as attorneys in the town court under any circumstances, nor could a member of the judges' law firms. 22 NYCRR 100.6(B)(2),(3). Further, we note that this is not a situation where as a matter of jurisdiction, no appearance can be made in the town court by the town attorney. Although some of our prior opinions appear to give weight to the frequency of local court appearances by the locality's attorney, we are now of the view that as rare as such appearances might be in this instance, the reality is that the town's code allows for certain matters to be prosecuted as violations or crimes in the town court. Presumably, a town attorney is involved in providing interpretations of the town code and in the drafting of its provisions or amendments thereto. We believe that this dual role as legal representative and judge serving the same political entity places the judiciary in an untenable position and therefore conclude that the inquirer should not serve as town attorney while serving as town justice. In our view the two positions are incompatible. 22 NYCRR 100.6(B)(4).

            As to being a member of the Board of Appeals, or counsel to the Zoning Board of Appeals, the Committee has repeatedly stated that the offices of town or village justice and member of a planning or zoning board of the same municipality are incompatible, since zoning and planning board decisions are commonly enforced in the town justice court, regardless of whether challenges are heard in that court or enforcement is in the name of the board. Opinions 89-82 (Vol. V); 90-3 (Vol. V); and 93-34 (Vol. XI). The same reasoning would apply to counsel to the zoning board, and, in any event, the judge could not represent the board in his or her own court, or in any other local court in the same county that was presided over by a part-time justice who is permitted to practice law. 22 NYCRR 100.6(B)(3), (4).