Joint Opinion 10-200/11-74
June 16, 2011
Digest: A part-time town justice may not serve simultaneously as County Manager and Budget Officer for the county in which the judge presides, where the position oversees the budgets of all county departments, including the local district attorney and public defender whose attorneys will appear before the judge. Even if it is technically feasible for the County Manager and Budget Officer to insulate him/herself from those portions of the county’s integrated budget, such insulation would not be sufficient to overcome the appearance of impropriety and incompatibility.
Rules: County Law art. 7; County Law § 354; 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.6(B)(4); Opinions 10-105; 10-19; 09-178; 07-163; 02-93; 01-20 (Vol. XIX); 95-68 (Vol. XIII); 91-144 (Vol. VIII); 88-46 (Vol. II).
In Inquiry 10-200, a newly elected part-time town justice, who is also employed full-time as the County Manager and Budget Officer for the county in which the judge presides, requests this Committee’s advice about “any [ethics] issues” relating to such outside employment.
The judge indicates that “[m]y concerns are related to the interaction of the District Attorney’s office and the Public Defender[’s] office with the Town Justice position.” In particular, as County Manager and Budget Officer, the judge has “oversight of the budgets of both of these offices” and is involved in developing their budgets, as well as any requests for amendments to their approved budgets, although the board of supervisors retains full and exclusive authority to make all budgetary decisions (see generally County Law art. 7). The judge notes that he/she was appointed as County Manager by the county board of supervisors and thus lacks any veto power over the board’s budgetary decisions.
The judge describes his/her involvement in the budget-setting process as follows. Each year, all county departments, including the district attorney and public defender, submit budget worksheets to the County Manager’s office. Each department’s worksheet contains “requests for funding” that “are broken down and documented.” In the first stage, the County Manager is part of a small group that meets with each department to review the requests, and the group may “choose to remove funding” or request additional cuts. In the second stage, the County Manager prepares an overall county budget. After meeting with the board of supervisors for further revisions, he/she submits a formal Tentative Budget for the board of supervisors to consider. The County Manager’s involvement in setting the budget ends with submission of the Tentative Budget. Thereafter, department heads “can then appeal directly to the Board for funds to be reinstated, and they often are.”
The judge describes his/her budgetary oversight responsibilities as follows. Once the board of supervisors adopts the final county budget, the County Manager’s role “is to review the spending which has been approved ... and to assure that all Departments are staying within the amounts determined by the Board.” The judge states that, as County Manager, he/she has no control over the day-to-day activities of the district attorney’s office or the public defender’s office, including their case load, hiring decisions or how they conduct their legal responsibilities.
Finally, the judge states that, as County Manager, he/she also works with county departments as needed “when it appears they have a legitimate reason for needing revisions to their adopted budget. For example we recently had a [significant criminal] case” and “it appeared that both the District Attorney and the Public Defender would need additional funding to address the case.” The County Manager “worked with both departments to get approval from the Board to set up a capital reserve account to cover expenses for the possible trial costs.” The judge indicates that, in this instance, the parties “arrived at a reasonable estimate” without any “discussion related to how they needed to spend the funds.”
A judge’s judicial duties must take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]). Therefore, a judge must avoid impropriety and the appearance of impropriety (see 22 NYCRR 100.2) 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]). Subject to these and other limitations, a part-time judge “may accept private employment or public employment in a federal, state or municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (see 22 NYCRR 100.6[B]).
Although this Committee has not previously addressed whether a part-time judge may serve as a County Manager and Budget Officer, the Committee concludes, in this instance, that the judge’s concerns about the compatibility of the two offices are well-founded.1
In the Committee’s view, the County Manager and Budget Officer’s statutorily defined responsibilities, as described by the judge, have at the very least the potential to influence, and are likely to create the appearance of influencing, the funding levels for each department (see e.g. County Law §354). The fact that a Budget Officer lacks final decision-making authority and veto power over the budget does not in any way detract from the public perception that he/she significantly influences the county budget. Critically, attorneys in at least two departments in the county budget, i.e. the district attorney’s office and the public defender’s office, regularly appear before the judge in criminal cases.
Although the judge indicates that the incumbent county department heads have been relatively cooperative with the budget process in the past, there is still a significant risk of mutual hostility inherent in the allocation of tax revenues to different county departments, especially as personnel or circumstances change (cf. Opinion 01-20 [Vol. XIX] [finding that the position of assistant district attorney is incompatible with judicial office even if “there has never been any question raised concerning a possible conflict or impropriety involving the judge”]). The possibility of conflict is not merely theoretical or speculative, as shown by the recent requests of the district attorney and public defender for additional funding to meet their needs in a specific upcoming criminal trial. Although this particular request was resolved amicably, it is easy to see that the outcome would have been very different had one or both of the parties been at odds with the inquirer’s recommendations.
The Committee has also previously advised that a judge must be cautious when his/her non-judicial employment may appear to align the judge with law enforcement or defense functions, as such a position is more likely to interfere with the proper performance of judicial duties or may compromise the judge’s appearance of impartiality (see 22 NYCRR 100.6[B]; Opinion 09-178). The position of County Manager and Budget Officer thus provides a built-in potential for conflict and an appearance of impropriety if, for example, the county budget is publicly perceived to favor, or disfavor, the district attorney vis-à-vis the public defender.
Finally, in a troubled economic climate, a county budget may readily explode into a matter of substantial and highly contentious public controversy. The Committee previously has advised that a judge's public involvement in matters of "substantial public controversy" may reasonably cast doubt on the judge's ability to act impartially in the performance of his/her judicial functions (see 22 NYCRR 100.6[B]; Opinion 10-19). Here, too, any public controversy over the budget would almost certainly focus attention on the role of the County Manager and Budget Officer as well as the board of supervisors. In order to explain to the public and the board of supervisors the details of, and reasons for, any controversial budget items involving the public defender, the district attorney, or potentially the sheriff or county law enforcement agency, if any, the County Manager would quite properly wish to make public statements defending his/her recommendations or disputing what he/she deems to be unfounded, frivolous, or unreasonable criticisms. All this would leave the judge vulnerable to a perception that he/she favors, or disfavors, the prosecution or the defense. Under the circumstances presented, the Committee thus believes the judge’s participation as a County Manager and Budget Officer would leave the judge exposed to public criticism and controversy that could undermine public confidence in the judge’s impartiality.
For all of these reasons, the Committee concludes that a town justice should not hold the position of County Manager and Budget Officer for the same county in which the judge presides.
In Inquiry 11-74, the judge provides additional information to support the initial inquiry (10-200). Specifically, the judge notes that the combined budget for the offices of the District Attorney and Public Defender is less than 2% of the overall budget for the entire county. In addition, after consulting with others in county government, the judge believes he/she can insulate him/herself from the portions of the budget relating to those two offices by asking another knowledgeable county official “to act in my place in those instances where budget decisions for these departments occur.” Moreover, the judge states that when the voters of his/her town elected him/her as town justice, they were fully aware that the judge already held – and planned to continue holding – the position of County Manager and Budget Officer. The judge suggests that it would be “overly harsh to determine the positions incompatible over the wishes of the electorate.”
Although the Committee is sympathetic to the judge’s dilemma, pursuant to the Rules Governing Judicial Conduct, the judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]). In the Committee’s view, even assuming it is technically feasible for the judge, as County Manager and Budget Officer, to insulate him/herself from portions of the county’s integrated budget, such insulation - which we assume would be undertaken with the best of intentions - will not eliminate the appearance of impropriety and the incompatibility inherent in the two positions the judge would hold (see 22 NYCRR 100.2; 100.6[B]). Accordingly, the judge may not continue to hold both positions.
1Of course, in some circumstances, employment with a county agency may fall within the parameters of permissible “public employment” for a part-time judge (see e.g. Opinion 88-46 [Vol. II]). However, the fact that the county would be the judge’s employer is not dispositive in determining whether or not the employment is compatible with judicial office. For example, a town or village justice may serve as a county attorney or a county social services attorney, even in the same county (see Opinions 10-105; 91-144 [Vol. VIII]). The judge may also accept employment with a county probation department or public defender’s office, albeit only in another county (see Opinions 02-93; 95-68 [Vol. XIII]). But a judge may not serve as a county’s assistant district attorney or special prosecutor, even in a different county (see Opinions 07-163; 01-20 [Vol. XIX]). In the Committee’s view, the employment responsibilities discussed in each of these prior opinions raise significantly different issues from those involved in the County Manager and Budget Officer position.