January 31, 2008
Digest: A town justice should not assist the Town Board in filling a vacancy for the office of town justice.
Rules: 22 NYCRR 100.1; 100.2; 100.5; 100.5(A)(1)(c); Opinions 07-130; 94-37 (Vol. XII); 91-72 (Vol. VII).
A town justice asks whether it is ethically appropriate to assist town board members in the interview process for candidates who apply for a board appointment as interim town justice. While the inquiring justice believes the initial appointment process will be politically benign, the appointee will likely run in a contested, partisan election for a full term in November.
In the Committee’s view, participation in such interviews would be incompatible with the inquirer’s judicial position, because it tends to blur the line separating the municipality’s executive and judicial branches, and it would involve the judge in prohibited political activity (see 22 NYCRR 100.1 [a judge shall uphold the integrity and independence of the judiciary]; 100.2 [a judge should avoid impropriety and the appearance of impropriety in all activities]; 100.5 [a judge or candidate for elective judicial office shall refrain from inappropriate activity]; see also Opinion 94-37 [Vol. XII] [judge’s participation in political process prohibited]). Moreover, the since the newly appointed justice would have the advantages of incumbency in the upcoming election, the public would likely perceive the inquiring justice’s participation in the appointment process as the equivalent of an endorsement of the appointee (see 22 NYCRR 100.5[A][c] [a judge is prohibited from engaging in partisan political activity]; see also Opinions 07-130 and 91-72 [Vol. XII] [a judge who serves on board of local bar association should not participate in ranking judicial candidates]; 94-37 [Vol. XII] [a judge may not serve on committee which recommends judicial candidates to the mayor for appointment to the bench]).