October 22, 1998
Digest: Under the circumstances, a part-time town justice, who owns and operates a local construction contracting business may bid on and, if successful, construct an airport hangar at an airport owned by the town.
Rule: 22 NYCRR 100.4(D)(1)(a), (b) and (c); 100.6(B)(4); Opinions 89-19 (Vol. III); 96-55 (Vol. XIV)
A part-time town justice, who owns and operates a local construction contracting business, asks if it is permissible to bid on and, if successful, construct an airport hangar at an airport which the town owns. The town would be using State grant money to construct the hangar.
The Rules Governing Judicial Conduct prohibit a judge from engaging in financial and business dealings that may reasonably be perceived to exploit the judges' judicial position, involve the judge with any business, organization or activity that ordinarily will come before the judge, or involve the judge in frequent transactions or continuing business relationships with those lawyers and other persons likely to come before the court on which the judge serves. 22 NYCRR 100.4(D)(1)(a), (b) and (c). However, a part-time judge may engage in private employment, provided that such employment is not incompatible with judicial office and does not interfere with the proper performance of the judge's duties. 22 NYCRR 100.6(B)(4).
It is in the context of this background that this Committee has addressed similar issues in the past. In one instance, the Committee advised that a town justice, who was also a carpenter, may remodel the town court facility for the town, for which the justice was paid approximately $1000, which was slightly above cost. Opinion 89-19 (Vol. III).
The Committee has also held that a village justice who is the owner of a local insurance agency may not allow the agency to submit bids to secure village insurance contracts. Opinion 96-55 (Vol. XIV). Such contracts would provide the judge with a continuing source of income over an extended period of time. But, unlike insurance, which clearly would involve the judge in a continuing business relationship with the town, the instant matter involves a single contract with a finite object and conclusion, i.e., the construction of the hangar. While the construction of the hangar is a larger contract than that of the remodeling the court facility, this situation is more analogous to the carpentry contract addressed in Opinion 89-19, which the Committee concluded was ethically acceptable. In addition, since this is an open and public bid, each construction company participating in the bidding process will be subject to public bidding procedural requirements and safeguards.
It is, therefore, the opinion of the Committee that, under the circumstances, the inquirer may bid on and, if the bid is accepted, construct an airport hangar at an airport which the town owns.