March 11, 1999
(1) A judge who was formerly a high-ranking deputy county attorney should
not preside over cases involving the county, or its departments or agencies,
which were pending at the time the judge was employed by the county. (2)
A judge who was formerly a member of the boards of a regional transportation
authority and a regional power authority should not preside over cases
involving the transportation authority or the power authority if the matter
in controversy arose during the period that the judge was associated with
those entities. (3) A judge should not accept honorary membership on the
board of a regional transportation authority or a lifetime pass authorizing
free access to all public transportation under the jurisdiction of the
22 NYCRR 100.1; 100.3(E)(1);
Opinion 97-08 (Vol. XV).
A full-time judge, who formerly served as a high-ranking deputy county attorney and a member of the boards of a regional transportation authority and a regional power authority, asks a series of questions regarding disqualification in matters involving state and county agencies and departments. The judge also asks about the propriety of accepting and utilizing, as a former active member and now honorary member of the transportation authority board, a lifetime pass for the judge and the judge's spouse, authorizing free access to all public transportation under the authority's jurisdiction.
Section 100.3(E)(1)(b)(i) of the Rules Governing Judicial Conduct requires a judge to disqualify him or herself if the judge knows that he or she "served as a lawyer in the matter in controversy." Here, in light of the judge's duties as a high-ranking deputy county attorney, it would be highly unlikely that the judge could clearly identify all matters involving various county agencies, in which the judge personally participated while serving in the County Attorney's office. Thus, to avoid the possibility of the judge presiding in such instances, we advise that the judge disqualify him/herself in any matter which was pending in the County Attorney's office while the judge was serving. 22 NYCRR 100.3(E)(1)(b)(i); Opinion 97-08 (Vol. XV).
Furthermore, the judge should not preside over any case involving the transportation authority or the power authority which involve any controversy which arose during the period that the judge was associated with those authorities. The judge was serving in a policy making capacity as a board member, and this could well give rise to a perception of partiality. 22 NYCRR 100.3(E)(1).
As to honorary membership on the transportation board, we note that a full-time judge may accept appointment to the board of a governmental agency devoted to the improvement of the law, the legal system or the administration of justice. 22 NYCRR 100.4(C)(3). Since the transportation authority does not appear to fall within this grouping, the judge should not maintain membership, honorary or otherwise, on its board.
In addition, the judge should not accept the transportation pass. We regard it as inappropriate for a judge to have a lifetime gift of what is a public benefit. It does not fall within any of the exceptions specified for the acceptance of gifts in section 100.4(D)(5) of the Rules and its use would not comport with the "high standards of conduct" mandated by section 100.1 of the Rules. We also believe that the judge should urge the judge's spouse not to accept the pass.