Please Note: This opinion has been implicitly modified by Opinion 99-162/99-180/00-63. Please refer to Opinion 99-162/99-180/00-63 and contact the Advisory Committee for further guidance if needed.
Digest: An acting part-time village justice may serve as the attorney for the village board of zoning appeals.
Rules: 22 NYCRR 100.5(h)
An attorney, who has represented a village’s board of zoning appeals on a case by case basis, inquires whether it would be appropriate to accept appointment as acting part-time village justice while continuing to represent the zoning board. An acting part-time village justice serves only in the absence or illness of their regular justice. A village zoning board of appeals hears and determines appeals from decisions of the village zoning officer, and has no enforcement function.
Section 100.5 (h) of the Rules of the Chief Administrator provides that, “a part-time judge may accept private 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.”
This Committee has determined that a part-time judge should not represent private clients before the zoning or planning boards of the municipality in which he or she sits as judge since “[a] judge who presides over zoning violation matters may appear to be an integral part of [the municipality’s] zoning enforcement scheme”, in a position to obtain favorable treatment for his or her private clients (Opinion 89-44, Vol. V).
So long as the inquirer does not appear before the zoning or planning boards of the village on behalf of private clients, there would be no appearance of impropriety in serving as the attorney for the zoning board of appeals, while also serving as acting village justice. Of course, the judge would be disqualified from presiding in any case involving the village zoning board of appeals.