May 4, 2000
Acting in accordance with a provision of a city charter that requires the
judge to cast the deciding vote to fill a city council vacancy does not
constitute prohibited political activity.
22 NYCRR 100.5(A)(1);
Dworsky v. Farano, 41 NY2d 780 (1977).
A City Court judge inquires whether the judge may comply with a provision of the city charter that requires the City Court judge to cast the deciding vote to fill a city council vacancy. Under the city charter, a city council vacancy that occurs due to the death of a city council member shall be filled by vote of the remaining city council members. In the event of a tie vote, the City Court judge shall cast the deciding vote.
A sitting judge is prohibited from directly or indirectly engaging in any political activity, except as otherwise authorized by section 100.5 of the Rules Governing Judicial Conduct, "or by law." 22 NYCRR 100.5(A)(1). It is apparent that the judge in this instance will not be violating this rule in casting a deciding vote to fill a city council vacancy since the judge is required to do so "by law," i.e. a provision of the city charter. Furthermore, the particular city charter provision at issue in this inquiry was upheld by the Court of Appeals in Dworsky v. Farano, 41 NY2d 780 (1977).