Opinion 08-121
September 11, 2008
Digest: (1) A part-time village justice may not serve as acting town justice for the same town that employs him/her as the Director of Planning and Zoning Administration. (2) Whether a village justice can perform arraignments pursuant to the Criminal Procedure Law for town or village justices who are not available to do so, in a town hall where he/she is employed by the town in a non-judicial capacity, is a legal question that the Committee has no authority to resolve.
Rules: Criminal Procedure Law; Judiciary Law §212[2][l]); Uniform Justice Court Act §106; 22 NYCRR 101.1; 100.2; 100.2(A); 100.3(A); 100.3(B)(1); 100.6(B)(4); Joint Opinion 89-157/90-7 (Vol. V); Opinions 05-141; 95-50 (Vol. XIII); 94-02 (Vol. XII); 90-14 (Vol. V); 89-156 (Vol. V); 89-82 (Vol. V); 88-109 (Vol. III); 88-112 (Vol. II).
Opinion:
A part-time village justice is employed by the town in which the village is located as the town’s Director of Planning and Zoning Administration. According to the judge, he/she coordinates “the processing of land use applications” received by the town and makes “determinations as to when it is appropriate to proceed with further evaluations” of these applications. The judge is also called upon to dictate “legal notices, agenda, memoranda” and also to represent “the Planning and Zoning Administrative function as needed.”
The judge asks the following questions:
1. As a result of my employment as the Town of [ ]’s Director of Planning and Zoning Administration, am I precluded from being designated by the Administrative Judge to act as a Judge in the Town of [ ] to assist due to a current Judge’s inability to perform [his/her] duties due to illness?
2. As a result of my employment with the town or for any other reason, am I precluded from performing arraignments for the Town of [ ] Justice Court in the Town Hall, and for other villages located in the Town of [ ] when the justices are unavailable?
3. As a result of my employment with the town or for any other reason, am I precluded from performing arraignments for the Village Court of [ ] outside of the Village in the [ ] Town Hall?
Pursuant to the Rules Governing Judicial Conduct, a judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2). A judge, therefore, must respect and comply with the law, and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A part-time judge may accept public employment in a federal, state or municipal department or agency, so long as such employment is not incompatible with judicial office and does not conflict with or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]). In any event, a judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]).
The Committee previously has advised that a part-time judge may serve as a member of a county fire advisory board (see Opinion 89-156 [Vol. V]); as a member of a town board of assessment review (see Opinion 90-14 [Vol. V]); and, as a member of a city industrial development agency (see Opinion 95-50) [Vol. XIII]). In each of these situations, the Committee concluded that the subject matter of the judge’s extra-judicial employment would not interfere or conflict with the judge’s judicial duties.
The Committee has advised, however, that a part-time judge may not engage in extra-judicial employment that would involve the judge in political or controversial issues, as to do so would result in an appearance of impropriety (see 22 NYCRR 100.2). Therefore, a part-time judge may not serve on a local school board (see Joint Opinion 89-157/90-7 [Vol. V]); on zoning or planning boards (see Opinion 89-82 [Vol V.]; 88-109 [Vol. III]); on a regional council dealing with the management of natural resources (see Opinion 94-02 [Vol. XII]); or as co-chair of a town’s Comprehensive Plan Committee that routinely recommends revisions to the town’s zoning code (see Opinion 05-141).
Because the proposed extra-judicial employment in the present inquiry involves the judge in the daily operation of town government units that are responsible for zoning and land use planning, as well as the administration and enforcement of zoning and land use planning rules and regulations, it is the Committee’s view that such extra-judicial employment is incompatible with the judge’s judicial duties, and would result in an impermissible appearance of impropriety (see 22 NYCRR 100.2; Opinion 05-141; 89-82 [Vol. V]; 88-112 [Vol. II]). The inquiring judge, therefore, may not serve as acting town justice for the town that also employs him/her as the Director of Planning and Zoning Administration. This prohibition does not, however, apply to the judge’s position as village justice.
The judge also asks whether he/she may, while acting in his/her capacity as village justice, perform arraignments in a town hall where he/she is employed by the town in a non-judicial position, for the town justice of such town or for justices of village courts located within the town pursuant to the provisions of the Criminal Procedure Law when such town or village justices are not available to do so. The Committee notes that section 106 of the Uniform Justice Court Act authorizes a justice to hold court anywhere in the municipality. It appears to the Committee, therefore, that the inquiring judge is precluded by law from conducting arraignments as a village justice outside the geographic boundary of the village in which he/she presides. However, as this is a question of law that the Committee has no authority to resolve (see Judiciary Law §212[2][l]; 22 NYCRR 101.1), the inquiring judge should instead consult his/her appropriate legal counsel, the Unified Court System’s City, Town and Village Courts Resource Center, or the New York State Attorney General’s Office (see 22 NYCRR 100.3[B][1]) in arriving at a decision on this question.