Opinion 04-101

September 14, 2004

Digest:         Under the circumstances presented herein, an appearance of impropriety exists where the presiding judge of a Drug Treatment Court sentences Drug Court participants to a Department of Probation day reporting program as a sanction for violating Drug Court rules or sentences a defendant to a service work alternative program where both programs are supervised by someone who resides with and is involved in a committed personal relationship with the judge.

Rules:          22 NYCRR 100.2(B), (C); 100.3(E)(1); 100.3(F).

Opinion:

         A judge who presides over a Drug Treatment Court sentences Drug Court participants to periods of day reporting sanctions for violation of Drug Court rules. The sentences are based upon recommendations of a Drug Court team consisting of a defense counsel, a prosecutor, mental health and substance abuse counselors, and probation officers. The judge resides with and is involved in a committed personal relationship with the direct supervisor of the Day Reporting program.

         An objection to the judge’s use of the day reporting program has been raised based on an appearance of impropriety allegedly created by the fact that the statistics of the day reporting program are improved by court referrals and the increased use of the program by the court enhances the program status and the status of its supervisor within the Department of Probation. There is no communication between the supervisor and the judge regarding the performance or status of defendants in the day reporting program. Unsatisfactory reports are made to the Drug Court team or to the judge by the Probation Officer assigned to work the day reporting program.

         The judge asks if sentencing defendants to the a day reporting program that is supervised by someone intimately involved with the judge as a sanction for violating Drug Court rules in lieu of incarceration, creates an appearance of impropriety.

         Section 100.2(B) of the Rules Governing Judicial Conduct states that “a judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment.” Section 100.2(C) of the Rules states that “a judge shall not lend the prestige of judicial office to advance the private interest of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.” Section 100.3 (E)(1) of the Rules states that “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” Remittal of disqualification where permitted is provided for in section 100.3(F).

         Applying these rules to the circumstances of this inquiry, an appearance of impropriety would be created by the judge’s sentencing of an offender to periods of day reporting sanctions as an alternative to incarceration where the direct supervision of the program is by someone intimately involved with the judge and the sentence results in the statistical enhancement of the status of the program and thereby not only its eligibility for funding but also the perceived enhancement of the status of the supervisor.

         The appearance of impropriety is not lessened by the fact that the judge does not receive reports from the supervisor regarding the performance of the offender/participants and the supervisor’s employment is not affected by the number of participants in the day reporting program. On the other hand, the failure of the judge to use the day reporting program as a Drug Court sanction in instances where its use would be the most appropriate disposition, merely in order to avoid an appearance of impropriety, is also improper.

         The relationship between the judge and the supervisor could be perceived to influence the judge’s decision to impose the sanction of day reporting and create the impression that the supervisor is in a position to influence the judge. Therefore, the Judge’s impartiality may reasonably be questioned in these proceedings.

          If the judge tried to avoid the problem by recusal in every case where a possibility exists that a referral to the day reporting program might be an appropriate disposition, the likely frequency of recusal would interfere substantially with the performance of the judge’s judicial duties. Therefore the committee concludes that although no actual conflict exists, an appearance of impropriety is created when a Drug Court Treatment Judge sentences Drug Court participants to a Probation Department Day Reporting Program directly supervised by the judge’s fiancee.

         The judge also inquires about the propriety of ordering defendants to participate, as part of a probationary sentence, in a Service Work Alternative Program (SWAP) which is also supervised by the judge’s fiancee.

         SWAP is a community service program whereby defendants perform a specified number of hours of work in the community for not-for-profit groups. The only communication between the judge and the supervisor involves routine reports certifying completion of the community service requirement. In the event that a non-compliance hearing was requested requiring the testimony of the supervisor, the judge understands and agrees that recusal is required.

         The issue again is whether the judge, under such circumstances, could be perceived as allowing his or her relationship with the supervisor to influence the judge’s judicial conduct or judgment. 22 NYCRR 100.2 (B). The relationship between the supervisor and the judge could be perceived to influence the judge’s decision to impose a sentence which includes the condition of SWAP and also creates the impression that the supervisor is in a position to influence the Judge.

         Accordingly, an appearance of impropriety is created when a judge imposes a sentence of probation which includes a directive that the defendant participate in a service work alternative program supervised by someone intimately involved with the Judge.

         We are aware that the situation may create substantial administrative problems which might impede the efficient operation of the Drug Treatment Court. It might, therefore, be preferable that such cases be assigned to another Drug Court judge.