Opinion: 97-40

May 8, 1997

Digest:  A part-time judge may not serve as a member of the New York State Motor Vehicle Theft and Insurance Fraud Prevention Demonstration Board.

Rules:  Exec. Law §§ 846-j; 846-l(2);
            22 NYCRR 100.1, 100.2(A);
            Opinion 96-65 (Vol. XIV).


            A part-time judge asks if it is permissible to accept a gubernatorial appointment as a representative of the judicial system on the New York State Motor Vehicle Theft and Insurance Fraud Prevention Demonstration Board. The purpose of this board is "to provide an integrated means to prevent, deter and reduce the incidents of automobile insurance fraud by developing and providing funding for demonstration programs which include education on theft and fraud prevention, programs on automobile theft and insurance fraud, prevention and specialized law enforcement units to combat automobile theft and insurance fraud." Exec. Law §846-j . This board is part of the Division of Criminal Justice Services and must, by statutory mandate, include representatives of the judicial system. Exec. Law §846-l(2).

            In Opinion 96-65 (Vol. XIV), this Committee concluded that it would be improper for a full-time Supreme Court justice to accept membership on this same board. The inquiring judge asks whether the prohibition applies to part-time judges.

            The concern expressed in Opinion 96-65 as to service by a Supreme Court justice arose from the State constitutional provision barring a Supreme Court justice from accepting another public office (N.Y. Const. Art. VI, §20(b)[1]), a consideration not at issue in the present inquiry. However, the essence of the earlier opinion was not predicated on that circumstance. Rather, it focused on the inherent incompatibility of the services required as a board member with any judicial office.

            As stated by the Committee:

In the view of this Committee, a judge should not participate in an official, governmental capacity in an activity that is explicitly passing upon and approving the funding of prosecution and law enforcement activities. Such participation could readily be perceived as drawing into question the independence of the judiciary (22 NYCRR 100.1) and casting doubt on the impartiality of the judiciary (22 NYCRR 100.2[A]).

            Thus, the conclusion of incompatibility is not dependent upon whether the judicial position is part-time or full-time. The considerations of independence and impartiality are identical in both instances. Further, it should be noted that the statutory requirement that the judicial system be represented on this board can be met by the appointment of a non-judicial court system employee.

            Accordingly, the inquiring judge should not serve as a member of the board. 22 NYCRR 100.1, 100.2(A), Opinion 96-65 (Vol. XIV).