Opinion: 97-49

September 11, 1997

Digest:  A part-time town court justice may serve as an associate to a Village Attorney for purposes of handling Article 78 proceedings and may attend Village Zoning Appeals and Planning Board meetings.

Rule:  22 NYCRR 100.6(B)(4); Opinion 90-14 (Vol. V).


            An elected Town Court justice serves part-time in the town within which there are several villages, three of which have their own Village Justice Court. The judge has been offered a position as associate to one of the Village Attorneys for the purpose of handling Article 78 proceedings brought against the Village in the Supreme Court, and to be available on a part-time basis to attend Village Board of Zoning Appeals, and Planning Board meetings, when the Village Attorney is not available.

            The judge advises that all Penal Law and Village Code violations are prosecuted in the Village Justice Court and referrals to the Town Justice Court would only be on the basis of a recusal by the Village Justices. The judge states that the judge would disqualify and recuse should any matter involving the Village come before the Town Justice Court.

            Section 100.6(B)(4) of the Rules Governing Judicial Conduct states that a part-time judge "may accept ... public employment... 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." It would appear, based upon the facts presented, that the matters about which the part-time Town Justice would render advice to the Village do not normally come before the judge's Town Court. If they should, by way of recusal of the Village Justices, another Town Justice could hear these matters. The Article 78 proceedings involve the Supreme Court and therefore they would not, in any fashion, pose a conflict with the Town Justice's normal duties. See Opinion 90-14 (Vol. V).