Opinion 07-110

September 6, 2007

Digest:         A part-time town justice may not accept or continue employment as a counselor in a local chemical dependency treatment center that accepts referrals from the town court.

Rules:          22 NYCRR 100.6(B)(4); Joint Opinion 00-60 and 00-61 (Vol. XIX); Opinions 97-55 (Vol. XV); 89-109 (Vol. IV).

Opinion:

         A part-time Town Justice who recently completed a master’s degree in social work inquires whether he/she may continue to work on a per diem basis at a local chemical dependency treatment center, as an addiction counselor. The Town Justice expects to refer defendants to treatment, but does not plan to direct any individual to a specific treatment center.

         A part-time judge may accept public or private employment, provided such employment is not incompatible with, and does not otherwise conflict or interfere with, the proper performance of judicial duties. 22 NYCRR 100.6(B)(4). To this end, this Committee has previously addressed the appearance of impropriety created by a judge’s connections with a program to which the judge may make referrals. For instance, a part-time judge must disqualify him/herself in drug and alcohol treatment cases where the judge is the landlord for a treatment center to which the judge may make referrals. Opinion 97-55 (Vol. XV). Similarly, where a part-time judge may, in effect, refer defendants to a defensive driving course, the judge may not continue in his/her employment as a defensive driving instructor therein. Joint Opinion 00-60 and 00-61 (Vol. XIX). The Committee has also stated that serving as director of a substance abuse treatment center is incompatible with judicial office, if the judge may be called on to refer parties to such treatment centers. Opinion 89-109 (Vol. IV).

         Here, the judge’s proposed employment would create an irreconcilable conflict. On the one hand, a judge’s direct or indirect referral to a clinic that employs the judge, even if the defendant chooses it from a list of approved clinics, would create an appearance of impropriety. On the other hand, it would be improper for the judge to decline to refer a defendant to the clinic that employs the judge, if that clinic were the most appropriate treatment center for that defendant. The Committee concludes, therefore, that the inquirer should discontinue his/her employment at that treatment center.

         The inquirer cannot obviate the conflict by limiting the number of hours he/she works at the treatment center. The core of the conflict is not the number of hours worked, but the inquirer’s impermissible involvement and connection with an entity to which he/she may make referrals. Joint Opinion 00-60 and 00-61 (Vol. XIX); Opinion 89-109 (Vol. IV).