June 13, 2000
A part-time judge should not continue his or her employment as a defensive
driving instructor where the court is facilitating attendance at and, in
effect, referring defendants to such course.
22 NYCRR 100.2;
Opinions 96-37 (Vol. XIV);
97-47 (Vol. XV).
The two part-time judges of the same town court raise with the Committee the procedures used in the court with respect to the defensive driving course available in the county. The question arises because one of the judges is also an instructor for the National Safety Council's Defensive Driving Course, offered by the county's Traffic Safety Board. Neither judge orders traffic defendants to attend such a course, nor do the judges suggest it. But if the defendant inquires or if the prosecutor raises the question, the court provides official Department of Motor Vehicle forms and information and a copy of scheduled courses offered in the county by the National Safety Council, i.e. the course where one of the judges is an instructor. Also, if the defendant qualifies for the American Association of Retired Persons course, information is provided. The judges ask whether these procedures suffice to meet objections previously expressed by this Committee concerning such employment.
Section 100.6(B)(4) of the Rules Governing Judicial Conduct provides that
a part-time judge (22 NYCRR 100.6[B]):
(4) may accept private employment or public employment in a federal, state or municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge's duties.
Although attendance here, at such a course is not directly ordered by the court, there is a facilitation of such attendance by the court. In our view, once the issue gets raised there is, in effect, a referral to the course by the court. Presumably such attendance is of legal benefit to the defendant. As the Committee has previously stated, that suffices to create an appearance of impropriety. 22 NYCRR 100.2; Opinions 96-73 (Vol. XIV); 97-47 (Vol. XV). It therefore follows that the judge should not continue in his or her employment as a defensive driving instructor.