Appearing Before Town Board Regarding Proposed Development on Land Jointly Owned by Judge and Spouse

February 13, 2007

CJE Opinion No. 2007-2

You have requested advice from the committee on whether you may attend an upcoming meeting of a local town board. You have informed the committee that you and your spouse jointly own real estate that your spouse is in the process of developing into several residential condominium units, which will be sold when the development is complete. You are hopeful that you and your spouse will be in a position to retain one of the units for yourselves as your permanent residence, but the decision whether to do so is contingent on a number of considerations (financial and other).

To complete the condominium development, various permits from town boards and commissions are required. In the role of developer, your spouse, and the team of architects and counsel your spouse has assembled, have appeared at the public hearings and meetings that the town boards and commissions have held. Because this development project is both an investment and a business, you have not appeared at any public meetings, nor have you had any conversations with town officials or bankers regarding the project.

At a meeting last week with one of the boards, there was a discussion about whether approval of the project would be contingent on a guarantee in writing that you and your spouse would live in one of the condominiums for at least five years. A second meeting of the same board is scheduled for the near future, and further discussion of the same topic is likely. You have asked whether you may appear in person before the board at its next public meeting to discuss the residence issue as it relates to you personally, because "the discussion and negotiation on this point has a direct and significant impact on a matter of utmost personal interest to [you] and [your] family."

Two provisions of the Code of Judicial Conduct bear on your request. The first is a portion of Section 4 D, specifically, subsections 4 D (1) and 4 D (2). In material part, these subsections provide:

"(1) A judge shall refrain from financial and business dealings that . . . may reasonably be perceived to exploit the judge's judicial position . . . .  

"(2) Subject to the requirements of this Code, a judge may hold and manage investments, including real estate, and receive compensation as set forth in Section 4H, but shall not serve, with or without remuneration, as an officer, director, manager, general partner, advisor or employee of any business."  

These provisions are discussed extensively in CJE Opinions 2006-4 and 2004-6.

Second, but related, is the general prohibition contained in Section 2 B against using the prestige of the judicial office to advance your own interests or the private interests of others.

In the committee's view, none of the cited provisions prevents your attendance at the upcoming meeting of the town board, but they do place limitations on what you may do at that meeting. Specifically, you must limit your participation to discussing the impact on you and members of your family of any requirement that you live in the condominium. You should not engage in advocacy for the development project or, indeed, in any discussion of the business aspects of the development venture. Moreover, you should not identify yourself as a judge or allow others to do so, and you should not otherwise exploit your judicial office in any way. Consistent with this advice, you may urge a preferred resolution on the issue whether you must live in the condominium