New York State
Ethics Commission


Advisory Opinion No. 91-16: Application of Public Officers Law §74 to a Motor Vehicle Referee employed by the Department of Motor Vehicles who engages in the private practice of law representing clients in traffic violations cases.

Introduction

The following advisory opinion is issued in response to a July 9,1991, inquiry from the New York State Department of Motor Vehicles ("DMV") [senior level employee] concerning whether the provisions of Public Officers Law §74 preclude a Motor Vehicle Violations Bureau Referee ("MVR") from engaging in the private practice of law representing clients in traffic violations cases outside of the county in which he is employed.

Pursuant to the authority vested in the New York State Ethics Commission ("Commission") by Executive Law §94(15), the Commission concludes that MVRs who represent clients in traffic violations cases, regardless of whether the private practice takes place in the county in which the MVR is employed, violate the Code of Ethics as set forth in Public Officers Law §74(2) and (3)(h). Further, an MVR is prohibited by Public Officers Law §73(7)(a) from representing a private client at a DMV proceeding before another MVR.

Background

The opinion request concerns an MVR employed in the DMV agency [ ] Adjudication Office who is engaged in the outside practice of law. That MVR purchased a newspaper advertisement which contained the large heading "Traffic Tickets," and described the MVR as an "experienced motor vehicle trial attorney" who would "defend you against any moving violation. . . ." The advertisement included the employee's name, [county] address, and two telephone numbers. It did not refer to either the employee's employing agency, DMV, or his MVR title. Nevertheless, DMV believes the employee's practice of law constitutes a conflict of interest with his official duties and seeks a Commission opinion concerning the alleged conflict.

DMV has administrative control over noncriminal traffic cases to relieve the backlogs of courts in certain jurisdictions. Pursuant to Vehicle and Traffic Law Article 2-A, the Commissioner of Motor Vehicles has established a system for the administrative adjudication of moving traffic infractions which are civil in nature.(1) In each jurisdiction in which the program is established, the Commissioner has located one or more Traffic Violations Bureaus ("TVB") staffed with referees (MVRs), supervisors and clerical personnel. TVB are established within the cities of New York, Buffalo, Rochester and the five western townships of Suffolk County. In localities where the caseload is more manageable, regular traffic courts handle noncriminal traffic cases.

Vehicle and Traffic Law §236 requires that all MVRs be attorneys. An MVR may issue subpoenas to compel the appearance of witnesses and the production of documents and is authorized to "enter judgments and enforce them, . . . in the same manner as the enforcement of money judgments in civil actions in any court of competent jurisdiction."(2) MVRs conduct original hearings for all non-misdemeanor moving violations which occur in their jurisdiction including cases involving fatal accidents, chemical test refusals, persistent violators, drivers with physical or mental disabilities and charges of driving with a suspended license or revoked license and driving without insurance. Further, MVRs conduct safety hearings and investigate charges of violations of the Vehicle and Traffic Law and the Commissioner's regulations by commercial establishments such as repair shops, inspection stations and dealers.(3)

DMV has indicated that MVRs may impose substantial fines and penalties and that they have the power to suspend and revoke licenses to operate motor vehicles and to engage in various businesses dependent on the possession of a driver's license.(4) Thus, an MVR adjudicates the same kinds of cases considered by a local traffic judge in areas where the volume of traffic violations does not require the formation of a Traffic Violations Bureau. It is the DMV view that MVRs perform "important quasi-judicial functions which are synonymous with those performed by judges in the judicial branch of government."(5) Thus, DMV believes MVRs should be precluded from the outside private practice of traffic law.

Applicable Law

Public Officers Law §73(7) prohibits a State officer or employee, other than in the discharge of his official duties, from receiving compensation for appearing or rendering services before any State of New York agency where such appearance is in connection with licensing.

The Code of Ethics, found in Public Officers Law §74, provides minimum standards against which State officers and employees are expected to gauge their behavior. The Code is directed at addressing the conflict between the obligations of public service and the demands of private, and often personal financial interest.

As DMV employees, MVRs are governed by §74. Public Officers Law §74(2) provides the following:

No officer or employee of a state agency, . . . should have any interest, financial or otherwise, direct or indirect or engage in any business or transaction or professional activity or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his duties in the public interest.

Following the rule with respect to conflicts of interest, Public Officers Law §74(3) provides standards of conduct which address not only actual, but apparent, conflicts of interest. Public Officers Law §74(3) provides, in relevant part, the following:

. . . .

(h) An officer or employee of a state agency, . . . should endeavor to pursue a course of conduct which will not raise suspicion among the public that he is likely to be engaged in acts that are in violation of his trust.

. . . .

Discussion

The MVRs advertisement does not specify whether he intends, as a private attorney, to appear to represent clients before other MVRs in DMV or in traffic courts. The Commission believes that an MVRs appearance in either forum is inappropriate. Any appearance before DMV would clearly be prohibited by Public Officers Law §73(7), which precludes the compensated appearance of State officers and employees before any State agency in connection with any licensing matters.

Traffic court appearances would also pose a problem. Such appearances could easily lead people to question the MVRs objectivity as he performs his "judicial" duties. The investment of time and energy to build a reputable private practice is significant. To be successful, a private defense attorney must aggressively defend persons in traffic court using every advantage legally available. Yet, in another forum, the same attorney, in the very same type of cases, must render unbiased and impartial decisions as an MVR to enforce the Vehicle and Traffic Law and, in those appropriate cases, punish undesirables whom he is advertising to defend. It is reasonable to anticipate that persons who know of the MVRs private practice will question the objectivity of his decisions regardless of the results. Therefore, the Commission must conclude that the private practice of traffic law by an MVR would violate Public Officers Law §74(3)(h) which directs State officers and employees "to pursue a course of conduct which will not raise the suspicion among the public that he is likely to be engaged in acts that are in violation of his trust."

Further, the Commission comes to this conclusion by analyzing other ethical provisions related to this type of circumstance. Certainly, if the conduct of this employee may raise ethical questions in his professional capacity, that same conduct will raise a suspicion among the public that he may be engaged in acts which violate his public trust. The potential for conflict arising between the duties of a judge and the obligations of private practice is addressed by the provisions of the Code of Judicial Conduct and the Code of Professional Responsibility. In particular, the Code of Professional Responsibility EC 8-8 states:

A lawyer who is a public officer, whether full-time or part-time, should not engage in activity in which his personal or professional interests are or foreseeably may be in conflict with his official duties.

If we keep in mind the judicial nature of the MVR's duties, the potential for conflict is even clearer. As early as 1942, the ABA addressed the question of the propriety of a judicial officer who is an attorney representing private clients before other tribunals. The matter concerned a local police judge whose duties involved ruling on questions of law and evidence in misdemeanor cases and examinations in felony cases. He wanted to represent criminal defendants in a higher court. The opinion holds that such practice would be unethical. It summarizes the conflict involved thus:

His private interest as a lawyer in building up his clientele, his duty as such zealously to espouse the cause of his private clients and to defend against charges of crime brought by law-enforcement agencies of which he is a part, might prevent, or even destroy that unbiased judicial judgment which is so essential in the administration of justice. . . . The public and private duties would be incompatible. The prestige of the judicial office would be diverted to private benefit, and the judicial office would be demeaned thereby.(6)

The question of such a conflict is addressed in the Code of Judicial Conduct ("Code"). The New York State Bar Association has held in Opinions 327 and 365 (1974) that the Code's standards are applicable to administrative hearing officers, including "referees." In Code commentary found under the heading "Compliance with the Code of Judicial Conduct," anyone:

[W]hether or not a lawyer, who is an officer of a judicial system performing judicial functions, . . . is a judge for purposes of this Code. (Compare ABA Informal Opinion No. 86-1522, which cites this section applying the Code to Administrative Law Judges in the federal system.)

The Code has been made part of the Judiciary Law in New York. Its provisions are, in relevant part, in complete agreement with the provisions of Public Officers Law §74. Canon 5(C)(1) of the Code, for example, summarizes, in language very similar to that of Public Officers Law §74, the responsibility of a judge to avoid conflicts of interest in his or her financial dealings:

A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his official duties, exploit his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.

Thus, an MVR's appearance in the traffic courts may violate the Code's standards and, in our view, as a consequence, violate the Code of Ethics found in §74.

The purpose sought to be accomplished by Public Officers Law §74, the Code of Professional Responsibility and the Code of Judicial Conduct is the same: to prevent actual, potential or perceived conflicts of interest. Although it is not within the purview of the Commission to draw conclusions based on either the Code of Professional Responsibility or the Code of Judicial Conduct, the State employee serving as an MVR should be thoroughly familiar with both Codes and should be guided appropriately. Even the most cursory of reviews would put the MVR on notice that substantial conflicts of interest may arise. In any event, the Commission finds that an MVR who engages in the private practice of traffic law violates the above described provisions of the Public Officers Law.

Conclusion

The Commission concludes that an MVR employed by DMV is precluded by Public Officers Law §73(7) from appearing on behalf of a private client before a fellow MVR in a licensing matter. Further, the MVR is prohibited by Public Officers Law §74(2) and §74(3)(h) from engaging in the private practice of traffic law. Such a private practice by an MVR would create impermissible conflicts of interest, undermine the administrative law judge's credibility before the public, and would also appear to violate both the Canons of the Code of Judicial Conduct and the Code of Professional Responsibility. It is recommended, therefore, that DMV prohibit MVRs from engaging in this type of practice.

This opinion, until and unless amended or revoked, is binding on the Commission in any subsequent proceeding concerning the person who requested it and who acted in good faith, unless material facts were omitted or misstated by the person in the request for opinion.

All concur:

Joseph M. Bress, Chair

Angelo A. Costanza
Donald A. Odell, Members

Dated: September 16, 1991


Endnotes

1. 15 NYCRR Part 121.5 defines "traffic infraction" to mean "any traffic violation below the grade of misdemeanor." The section further states "for the purposes of these regulations, traffic infraction shall not include a violation relating to parking, stopping or standing, or a pedestrian offense. A traffic infraction is not a criminal offense."

2. Vehicle & Traffic Law, §237.

3. Civil Service Job Specifications, "Motor Vehicle Referee-Grade 25."

4. [Date omitted] correspondence [from DMV].

5. Id.

6. ABA Form. Op. No. 242 (1942).



URL: http://www.nysl.nysed.gov/edocs/ethics/91-16.htm