Opinion: 99-176

December 9, 1999

Digest: There is no ethical barrier preventing a part-time judge from serving on a Traffic Safety Board, but the judge should be cognizant of the possible requirement of recusal in court proceedings involving matters that may have been before the Traffic Safety Board.

Rule:  22 NYCRR 100.3(E)(1), 100.4(A)(1)(3).


            A part-time judge asks if it is permissible to continue serving as a member of a Traffic Safety Board. Established pursuant to the Vehicle and Traffic Law, the Board "serves as a clearinghouse for complaints and requests for traffic controls, investigating such complaints and requests, and then recommending a possible course of action to local municipalities or forwarding" them to the Department of Transportation. The Board exercises no rule-making or other legislative function. The judge also asks if it is permissible to serve as the Board's recording secretary or as a vice-president.

            Based on the facts presented, the Committee sees no inherent incompatibility between service on the Board, as described, either as a member or as a vice-president or recording secretary, and the judge's judicial duties. 22 NYCRR 100.4(A)(3). Nor does such extra-judicial activity in and of itself "cast reasonable doubt on the judge's capacity to act impartially as a judge." 22 NYCRR 100.4(A)(1).

            Nevertheless, the Committee cautions that there may be judicial proceedings before the judge that involve facts that may have been the subject of investigation or recommendations by the Board. Having already taken a position on such matters or having considered them as a Board member, the judge must give due weight to the question of whether, under such circumstances, the judge's impartiality in the particular proceeding might reasonably be questioned and therefore the judge should disqualify him or herself. 22 NYCRR 100.3(E)(1). We do not intend to lay down a general proscription in this regard since the question of possible recusal in a particular case has not been raised by the judge and, of course, the facts and circumstances may differ from case to case. We do, however, wish to alert the judge to consider such matters should the occasion arise.