November 15 , 1988
The Advisory Committee on Judicial Ethics, at its meeting on October 27, 1988, considered your inquiry (88-126), dated October 12, 1988, and in response thereto determined that a copy of opinion 88-41 (enclosed) be transmitted to you. You will note that this Opinion, citing section 100.3(c) of the Judicial Conduct Rules of the Chief Administrator of the Courts, requires a Town or Viliage justice to disqualify himself or herself if one of the parties or attorneys is a member of the Town or Village Board that sets the justice's salary, but also provides that the disqualification may be waived by the parties in writing pursuant to the provisions of section 1OC.3(d) of the Rules of the Chief Administrator, which, as recently amended, reads as follows:
(d) Remittal of disqualification. A judge disqualified by the terms of subparagraph (c)(l)(iii) or (iv) of this section, instead of withdrawing from the proceeding, may disclose on the record the basis of the disqualification. If, based on such disclosure, the parties by their attorneys, independently of the judge's participation, all agree that the judge's relationship is immaterial in that his or her financial interest is insubstantial, the judge no longer is disqualified, and may participate in the proceeding. The agreement shall be in writing, or shall be made orally in open court upon the record.
This Opinion is advisory only and is not binding upon the Commission on Judicial Conduct or the Office of Court Administration.
Very truly yours,
Samuel J. Silverman, Chair