Opinion 23-67


June 15, 2023


Digest: A part-time town justice may not serve as counsel to the town planning board in the town where the judge sits.


Rules:   22 NYCRR 100.2; 100.2(A); 100.3(A); 100.6(B)(1)-(4); Opinions 20-134; 19-07; 08-121; 03-22; 99-162/99-180/00-63; 93-34; 93-01; 90-03; 89-82; 88-109; NY St Bar Assn Comm on Prof Ethics Op 571 (1985).




          A part-time town justice, who has legal expertise in municipal/land use law, asks if they may serve as counsel to the town planning board.  The judge explains that, unlike the zoning board of appeals, the town planning board does not address “zoning matters or zoning/code enforcement.”  Rather, it reviews site plans and special use permit applications.  The judge also distinguishes the position of town attorney, because the planning board appoints its own counsel and is independent of the town board.


          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  Although a part-time attorney judge may practice law (see 22 NYCRR 100.6[B][1]-[3]) and may accept private employment or public employment in a municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]), a judge’s judicial duties nonetheless “take precedence” over all the judge’s other activities (22 NYCRR 100.3[A]). 


          We have said 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 [local] justice court, regardless of whether challenges are heard in that court or enforcement is in the name of the board” (Opinion 99-162/99-180/00-63; accord Opinions 20-134 [town justice may not serve on a review planning board which “oversees subdivisions of large parcels” in the town]; 93-34 [declining to reconsider “our prior opinions that a part-time judge cannot serve on the planning or zoning boards of the same local governmental unit”]; 93-01 [village justice may not serve as member or chair of village planning board]; 90-03 [town justice may not serve on town planning board]; 88-109 [town justice may not chair the town planning board]).[1] 


          Moreover, we have extended this prohibition to some closely related roles, such as counsel to the local zoning board of appeals (see Opinion 99-162/99-180/00-63); secretary to the local planning and zoning boards (see Opinion 03-22); and service as the Director of Planning and Zoning Administration in the same town (see Opinion 08-121).  In Opinion 03-22, we recognized that, although a secretary to the planning and zoning boards “does not have the authority of a member of the board, the position of secretary involves loyalty, confidentiality, and a close working relationship with the board; this is sufficient to apply to the secretary the same conclusion that applies to the members of the board.”


          Here, too, we conclude that it would create an appearance of impropriety for a town justice to serve as counsel to the town planning board, notwithstanding the judge’s representations that the planning board does not address zoning matters or zoning/code enforcement and is independent of the town board (see Opinion 89-82 [“Incompatibility includes giving rise to an appearance of impropriety”]; cf. NY St Bar Assn Comm on Prof Ethics Op 571 [1985] [attorney for town zoning board of appeals and planning board may not also accept position as town justice]).  We note, for example, that the planning board’s work may involve matters of local public controversy and/or the issuance of controversial decisions which may result in Article 78 proceedings in Supreme Court naming the planning board as a respondent (see Opinions 08-121; 88-109).


          Accordingly, we conclude that the inquiring town justice may not serve as counsel to the town planning board in the town where the judge sits.


[1] In Opinion 19-07, while reviewing several lines of prior opinions, we suggested a town justice’s service as chair of the town planning board was “inherently incompatible” with judicial office because such a role “could involve the judge in high-level executive action; access to limited and sensitive information; and/or policy-making, prosecutorial or management roles that conflict with judicial independence, impartiality and neutrality.”