July 9, 2013
This responds to your inquiry (13-30) asking whether you may preside in matters involving the local housing authority since you formally interviewed with the trustees of the housing authority for the position of executive director, but within a few days after the interview, notified the chairperson that you no longer want to be considered for the position.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any case in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).
The Committee previously has advised that a judge who affirmatively seeks employment with a law firm by making an application for employment must disqualify him/herself when the law firm subsequently appears in the judge’s court, and must continue to do so as long as there is any possibility that the firm may offer the judge employment (see Joint Opinion 05-35/10-78).
If no employment relationship results and the application process ends, the judge no longer has to disqualify him/herself when the firm appears in the judge’s court, unless the judge cannot be impartial or the judge’s impartiality can reasonably be questioned (see id.).
Similarly, because you have withdrawn your application for employment with the local housing authority for the position of executive director, you need not disqualify yourself in cases involving the authority unless you cannot be impartial or your impartiality might reasonably be questioned in a particular case.
I have enclosed a copy of Joint Opinion 05-35/10-78 for your convenience.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)