September 6, 1996
Digest: A part-time judge may not lease a building located in the town where the judge presides, to a drug and alcohol treatment center which provides evaluations and treatment to defendants appearing before the judge.
Rules: 22 NYCRR 100.4(D)(1)(b); Opinion 90-76
A part-time town judge owns a building with his/her two sisters and a brother, which is located in the town where the judge presides. The judge wishes to lease the building to a drug and alcohol treatment center.
The judges of the Town Court require an evaluation of the defendant in every alcohol and drug related charge. The prospective tenant is one of three or four agencies to which defendants are referred for such evaluation and, where necessary, appropriate treatment. Many defendants choose the prospective tenant because it is located in the town.
The judge inquires whether there would be an appearance of impropriety if the prospective tenant performs evaluations in cases pending before the judge or where the judge requires defendants to seek treatment from the tenant. The judge further inquires whether recusal would be necessary for all matters in which the prospective tenant performs evaluations and accepts the particular defendant.
Section 100.4(D)(1)(b) of the Rules Governing Judicial Conduct provides that:
“A judge shall not engage in financial and business dealings that...(b) involve the judge with any business, organization or activity that ordinarily will come before the judge...”
Clearly, that provision prohibits the judge from leasing the building of which he is an owner to any agency that performs evaluations and/or treatment for defendants who appear before the judge.
The committee rendered a similar opinion in Opinion 90-76 where a part-time judge was advised not to lease an apartment to a New York State Trooper who issued traffic tickets that would come before the judge’s court.