Opinion 06-09

March 9, 2006

Digest:         A Judicial Hearing Officer (JHO) should not serve as a member of a board of ethics of a municipality in the county where the JHO serves, where the board is authorized to conduct investigations and hearings concerning alleged ethics violations by officers and employees of the municipality.

Rules:          22 NYCRR 100.2(A); 100.4(A); 100.6(A); Opinions 02-43; 01-49 (Vol. XX); 91-35 (Vol. VII).

Opinion:

         A Judicial Hearing Officer (JHO) asks whether it is ethically permissible to serve as a member of a board of ethics of a municipality in the county where he/she serves as a JHO. The JHO advises that he/she will receive no compensation for such service.

         Judicial Hearing Officers must comply with the Rules Governing Judicial Conduct in the performance of their judicial duties and, “otherwise shall so far as practical and appropriate use such rules as guides to their conduct.” 22 NYCRR 100.6(A). While judges, including JHOs, may, of course, engage in extra-judicial activities, such activities should not cast reasonable doubt on the judge’s capacity to act impartially as a judge; detract from the dignity of judicial office; interfere with the proper performance of judicial duties; or be incompatible with judicial office. 22 NYCRR 100.4(A).

         This Committee has previously concluded that a part-time judge could accept appointment to a municipality’s ethics committee where the tasks of the committee were to revise the local code of ethics for adoption by the local council and then to recommend either that a separate board of ethics be established or that the committee itself should become the board of ethics. Opinion 91-35 (Vol. VII). But, where an ethics board is empowered to hold hearings concerning complaints against members of the municipal government and recommend sanctions, the Committee reached a different result. Opinions 02-43; 01-49 (Vol. XX). A judge’s participation in such hearings would inevitably involve the judge in matters of public controversy, and the imposition of sanctions could lead to court action in the county where the judge serves, thus impairing the public’s confidence in the integrity and impartiality of the judiciary. 22 NYCRR 100.2(A).

         In the present inquiry, although the board will issue advisory opinions, the municipal code also authorizes the board to conduct investigations into allegations of misconduct, in order to determine whether a violation of the municipality’s ethics code has occurred, and to conduct hearings concerning the allegations. Because these additional activities would involve board members in a role more than advisory – but as active participants in matters of public controversy with the potential for litigation – the inquiring JHO should not serve in that capacity.