Opinion 03-96

October 23, 2003

Digest:         Under the circumstances presented, a part-time city court judge may (1) serve on the board of a facility that houses young men convicted of felonies; (2) consult with county officials concerning a parole re-entry program under consideration; and (3) serve as an administrative law judge hearing Department of Social Services State Central Registry review cases.

Rule:            22 NYCRR 50.3; 100.4(C)(3); 100.6(B)(4); Opinions 00-12 (Vol. XVIII); 90-104 (Vol. VI); 88-96 (Vol. II).

Opinion:

         A part-time city court judge presides over a drug treatment court to which other judges refer misdemeanor cases. This inquiry seeks the Committee’s opinion as to the propriety of continued participation by the judge in the following activities: employment as an administrative law judge hearing Department of Social Service State Central Registry review cases; consulting with county officials about a parole re-entry program that is being considered; and membership on the board of a facility housing young felons, which is under the jurisdiction of the Office of Children and Family Services.

         Specifically, with respect to the position on the board of the facility the judge has “functioned informally” as chairperson of the board of the facility and communicates regularly with the facility’s administrator. The judge advises that there is no overlap with inmates of the facility. Rather, the judge only handles “organizational matters,” does not appear on the facility’s stationery and plays no direct fund-raising role. The judge does not refer persons appearing before him/her to the facility.

         Extra-judicial activity of the nature contemplated is permitted under section 100.4 of the Rules Governing Judicial Conduct. 22 NYCRR 100.4 (C)(3). In a similar circumstance, this Committee held that a part-time judge may serve as a member of a citizens advisory committee which will work with the Department of Correction in connection with a correctional facility. Opinion 90-104 (Vol. VI). Since the inquiring judge does not make referrals to the facility in question and has no involvement with its residents, the Committee perceives no bar to the judge’s continued membership on the facility’s board.

         For similar reasons, the committee finds no impropriety in the judge’s present involvement in a possible parole re-entry program. All that is involved at present are consultations concerning the institution of such a program. We see no ethical barrier to the judge participating in such discussions.

         As to the judge’s employment as an administrative law judge in Department of Social Service cases, section 100.6(B)(4) of the Rules Governing Judicial Conduct is to be applied. This section permits a part-time judge to accept private employment or public employment in a federal, state or municipal department or agency, 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. 22 NYCRR 100.6(B)(4). Previously, this Committee has stated that employment as an administrative law judge for the Department of Motor Vehicles by a part-time judge was compatible with a part-time judge’s judicial duties. Opinion 88-96 (Vol. II).

         We see nothing in the description of the position now contemplated which would require a different result. Whether this constitutes a dual employment situation under section 50.3 of the Rules of the Chief Judge, which would therefore require approval of the employee’s appointing authority and of the Chief Administrative Judge, is a question to be determined not by this Committee but by the Office of Court Administration. Opinion 00-12 (Vol. XVIII).