Opinion 89-109

September 12,1989


Digest:         There is an incompatibility in a person holding the office of town justice and also holding the office of executive director of a private foundation that accepts referrals from the town court, providing in-patient and outpatient clinical treatment to defendants in need of substance abuse treatment.


Rules:          22 NYCRR 100.5(h)


         A candidate for town justice, who is executive director of a foundation which operates a clinic that treats substance abusers, asks whether there would be an incompatibility in the same person’s holding both positions, because the foundation accepts referrals from the town court. Section 100.5 (h) of the Judicial Conduct Rules of the Chief Administrator of the Courts provides in relevant part as follows:


A part-time judge 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 duties and does not conflict with the proper performance of the judge’s duties. . . .

         The Committee points out that an appearance of impropriety would be created necessarily, if a town justice referred defendants to a clinic operated by a foundation that employed the justice as executive director. On the other hand, it would be improper for the justice to fail to refer a defendant to the clinic if that were the most appropriate disposition. If the town justice tried to avoid this dilemma by recusal in every case where a possibility existed that a referral to the clinic might be an appropriate disposition, the likely frequency of recusal would interfere substantially with the performance of the justice’s judicial duties. Therefore, the Committee concludes that employment as executive director of this foundation would be incompatible with holding the office of town justice.