Opinion: 96-35

September 5, 1996

Digest:  A part-time town judge (1) may not serve on a village zoning board of appeals if zoning matters may be heard in the Town Court (2) may preside over cases involving youths served by a not-for-profit academy on whose board of directors the judge serves, provided that impartiality can be maintained and the judge has no knowledge of the youth and the academy is not involved in the matter (3) may not engage in the solicitation of funds or other fund-raising activities on behalf of the academy, but may participate in the planning of fund-raising.

Rules:  22 NYCRR 100.3(E); 100.4(A)(3);
            100.4(C)(3 )(a)(i); 100.4(C)(3)(b)(i);
            Opinions 94-04 (Vol. XII),
            89-82 (Vol. V).


            A newly-elected part-time Town Court judge asks a number of questions arising out of the judge's extra-judicial activities.

            The judge states that he/she has been serving as chair of a village zoning board of appeals and asks whether the continuation of such service as member and chair is permissible. in the view of the Committee, the answer to that question depends on whether village zoning matters may come before the Town Court over which the judge presides. In Opinion 89-82 (Vol. V), the committee advised that a part-time town judge may not serve as a member of a village zoning or planning board where cases involving violations of village zoning regulations are handled in the town court. Such service, the Committee held, would involve the judge in proceedings that ordinarily would come before the judge (22 NYCRR 100.4(C)(3)(a)(i)) and would be incompatible with judicial service (22 NYCRR 100.4(A)(3). It was noted in that matter that all zoning cases were brought in the Town Court, as there were no village courts in the town.

            In the present instance, the inquiring judge states that for the past 10 years there have been no appeals from the determinations of the zoning board of appeals. That fact, however, would not be dispositive as to whether any zoning matters are heard in the Town Court. Thus, if matters involving village zoning regulations or rulings of the board of appeals may be heard in the Town Court, then the judge should not serve, for the reasons expressed in Opinion 89-82 (Vol. V).

            The judge also asks a number of questions concerning the judge's relationship with a private not-for-profit academy which serves "youths at risk," between the ages of 12 and 18. The judge is a member of the board of directors. Advice is sought as to the extent to which the judge may preside over matters involving youths who are being served by the academy. In the view of the Committee, the judge may preside over such matters if the judge believes that he/she can be impartial (22 NYCRR 100.3(E)). In Opinion 94-04 (Vol. XII) the Committee held that a village judge could preside over cases involving students at the local college where the judge was employed as a professor, unless the students were enrolled in the judge's classes. As applied to the instant matter, if the judge has some particular knowledge about the youth who is appearing before the court or if the matter involves the academy itself in any way, the judge should exercise recusal.

            The judge also seeks advice as to the extent to which involvement in fund-raising for the academy is permissible. In the opinion of the Committee, the judge may serve as chair or member of the Development Committee to the extent that such service is restricted to the planning of fund-raising or the management of the organization's funds. But the judge may not "personally participate in the solicitation of funds or other fund-raising activities" (22 NYCRR 100.4(C)(3)(b)(i)). Thus, the judge may not make speeches at any churches or service clubs which are intended to elicit contributions to the academy, regardless of the location of the church or service club. As to the use of the judge's name for fund-raising purposes, section 100.4(C)(3)(b)(iv) of the Rules Governing Judicial Conduct states that a judge "shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation but may be listed as an officer, director or trustee of such an organization. Use of an organization's regular letterhead for fund-raising is permissible provided the letterhead lists only the judge's name and office or other position in the organization and, if comparable designations are listed for other persons, the judge's judicial designation." (Emphasis added).