January 26, 2006
Digest: A part-time town justice should not continue service as co-chair of the town's Comprehensive Plan Committee, in light of the fact that (1) its mission includes recommending revisions to the town’s zoning code, and (2) there is a substantial likelihood that the committee will be involved in matters of public controversy.
Rules: 22 NYCRR 100.2; 100.6 (B)(4); Opinions 88-109 (Vol. III); 88-112 (Vol II);
89-82 (Vol. V); 89-156 (Vol. V); 89-157 (Vol. V); 90-7 (Vol. V); 90-14 (Vol.
V); 93-108 (Vol. XII); 94-02 (Vol. XII).
A recently-elected town justice inquires whether it is permissible to continue to serve as co-chair of the town's Comprehensive Plan Committee. The inquiring judge states that some residents believe that the Committee is politically biased or is not truly representative of the residents. The judge also states that part of the mission of the committee is to recommend amendments to the town’s zoning laws.
The Rules Governing Judicial Conduct provide that a part-time judge may accept 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 with or interfere with the proper performance of the judge's duties. 22 NYCRR 100.6 (B)(4).
Applying this Rule, this Committee has approved part-time judges accepting appointment to a county fire advisory board (Opinion 89-156 [Vol. V]); a town's board of assessment review (Opinion 90-14 [Vol. V]); a citizen's committee to reduce violence (Opinion 93-108 [Vol. XI]); a county agricultural advisory committee, (Opinion 94-98 [Vol. XII]); and a city Industrial Development Agency (Opinion 95-50, [Vol. XIII]). On the other hand, the Committee has disapproved appointment to or membership on committees that focus on political or controversial issues, such as local school boards (Opinions 89-157 [Vol. V], 90-7, [Vol. V]); zoning or planning boards (Opinions 88-109 [Vol. III]; 89-82 [Vol. V]; and a regional council dealing with the management of natural resources. Opinion 94-02 (Vol. XII).
Since the inquiring judge has indicated that the committee itself and its recommendations are likely to become controversial, service on the committee appears to be incompatible with judicial office, and therefore the judge should discontinue service on the committee. Also, it would create an appearance of impropriety for the judge to serve on a municipal committee to recommend amendments to the town’s zoning laws, when the judge will be involved in the enforcement of those very laws. 22 NYCRR 100.2; Opinion 88-112 (Vol. II).