Opinion 05-14

March 10, 2005

Digest:         A judicial hearing officer may not seek election to or serve as a legislator on the County Board, regardless of whether that office is in or outside the county, judicial district, or judicial department where he/she serves as a judicial hearing officer.

Rules:          22 NYCRR 100.5, 100.5(B), 100.6(A), Opinion 95-66 (Vol. XIII), 95-64(Vol. III), 94-44(Vol. XII), 93-18 (Vol. X).

Opinion:

         The inquirer, a recently retired County Court judge is in the process of being certified as a judicial hearing officer (“JHO”). The question posed is whether he/she may serve as a legislator on the County Board while serving as a judicial hearing officer in the local County Court, and, if not, whether service as a JHO in other counties would be permissible.

         In Opinion 93-18 (Vol. X), the Committee was asked by a JHO whether he/she may run for village mayor in a county other than the one where he/she served as a JHO. Responding in the affirmative, the Committee stated that the position of judicial hearing officer is sui generis, and that since the JHO’s quasi-judicial duties are carried out in a different jurisdiction there was no ethical barrier to seeking election to the position of village mayor.

         We hereby overrule Opinion 93-18 (Vol. X), and conclude that a judicial hearing officer may not seek election to and serve in an elective non-judicial office, regardless of whether that office is in or outside the county, judicial district, or judicial department where the JHO serves. Specifically, we hold that section 100.5(B) of the Rules Governing Judicial Conduct, which states that “[a] judge shall resign from judicial office upon becoming a candidate for elective non-judicial office . . . “ is applicable to the quasi-judicial office of judicial hearing officer. 22 NYCRR 100.5(B).

         In reaching that conclusion, we note that Opinion 93-18 (Vol. X) was pronounced in 1993. Subsequent to its issuance, the Committee, in a number of opinions, held that various restrictions on the political activities of judges are likewise binding on quasi-judicial officials, including judicial hearing officers. For example, in Opinion 94-44 (Vol. XII), the Committee stated that a JHO may not make political contributions or attend political rallies. See also, Opinions 95-66 (Vol. XIII), 95-64 (Vol. XIII). Moreover , under the revision of the Rules Governing Judicial Conduct, in 1996, specific reference is made to the applicability of the Rules to judicial hearing officers. Section 100.6(A) states:

§100.6. Application of the Rules of Judicial Conduct

(A). General Application. All judges in the unified court system and all other persons to whom by their terms these rules apply, e.g. candidates for elective judicial office, shall comply with these rules of judicial conduct, except as provided below. All other persons, including judicial hearing officers, who perform judicial functions within the judicial system shall comply with such rules in the performance of their judicial functions and otherwise shall so far as practical and appropriate use such rules as guides to their conduct.

         Thus, it is our opinion that judicial hearing officers are to be guided in their conduct in relation to political activities by section 100.5(B) which requires resignation from office in order to seek elective non-judicial office. It follows that should the inquirer be certified as a judicial hearing officer he or she would not be able to seek or serve in the elective office of county legislator and remain a judicial hearing officer.