Opinion 94-02

March 10, 1994

Digest:         A part-time judge may not serve on a regional council dealing with coordination, implementation and management of policies affecting natural resources.

Rules:          22 NYCRR §§100.5(h); 100.7(e); 100.1

Opinion:

         A recently elected town justice inquiries whether it is permissible to continue to serve on a regional council, the general purpose of which is to serve as "the primary entity through which local, state, and federal agencies resolve their differences and agree upon joint actions affecting the [River] valley" [plan p. 19]. The council is authorized "to use its powers as a forum to secure enforcement of existing laws and ordinances which affect the resources of the river." [24]. An entity known as the "Independent Landholders Association" has objected to the town justice's membership on the council, asserting that the council is a “de facto legislative body” [letter dated 12/1/93].

         After reviewing the materials furnished by the town justice, we conclude that the council is concerned with issues that are controversial and have political implications. Participation in controversial political issues is to be avoided by a judge. Such participation could well constitute "activity of a partisan political nature" (22 NYCRR §100.7[e]) and would be "incompatible with judicial office" (22 NYCRR S100.5[h]) (Opinion 89-132, quoted in Opinion 91-91 Vol VIII, and Opinion 93-108, Vol. XI; see also, Opinion 91-26 Vol. VII, Opinion 93-16 Vol X; Opinion 92-377 Vol. IX; Opinion 91-40 Vol. VII; Opinion 90-141, Vol. VI; Opinion 89-143 Vol. IV).

         The town justice states that as an alternative to resignation he could abstain from all the "project review function[s]" of the council [letter, p. 2]. This alternative would not completely negate the risk that his/her participation in the council's other functions might still be perceived as "engagement in controversial political questions." The town justice should therefore resign from the position of member of the named council or, alternatively from the office of town justice.