Opinion 06-178

January 25, 2007

Digest:         A judge should not serve on a mayoral committee that would recruit and recommend individuals for appointment as City Marshals.

Rules: 22 NYCRR 100.1; 100.2; 100.4(C)(2)(a); Opinions 06-120; 99-100 (Vol.

XVIII); 95-144 (Vol. XIII); 94-37 (Vol. XII); 90-63 (Vol. V); O’Day v. Yeager, 308 N.Y. 580 (1955); CPL § 2.10; NYCCC §§ 1604, 1611, art. 7.

Opinion:

         A full-time appellate judge has been asked to serve on a mayor’s committee to establish and publish qualifications, recruit and review applicants, and recommend individuals for appointment as City Marshals. The judge asks whether it is proper to serve on this mayoral committee.

         The City Marshals in the instant inquiry hold peace officer status under the definition set forth in section 2.10 of the Criminal Procedure Law. CPL § 2.10(33). Their duties under the New York City Civil Court Act include enforcing court orders, including executions against property, car seizures, evictions and wage garnishments. NYCCCA art. 7. They are unsalaried, but collect fees from those who use their services. NYCCCA § 1611. A City Marshal is an independent officer whose powers are created by statute and who exercises a high degree of independent judgment. Cf. O’Day v. Yeager, 308 N.Y. 580 (1955).

         The enabling statute requires City Marshals to post a bond to protect the municipality from law suits instituted in performing their duties. NYCCCA § 1604. The bulk of their duties are inextricably intertwined with the judicial system. They are often involved in litigation and other controversies arising from the performance of their duties, including court actions challenging the actions they take in performance of their duties, and other claims of malfeasance or nonfeasance.

         The public’s confidence in the integrity and impartiality of the judiciary could be impaired if a City Marshal whose conduct is in issue appears before a judge who was involved in the process that led to that Marshal’s recruitment, selection and appointment. 22 NYCRR 100.1; 100.2. In addition, this Committee has previously determined that judges should avoid involvement with controversial public issues. Opinions 95-144 (Vol. XIII); 90-63 (Vol. V).

         This Committee previously determined that it would be inappropriate for a full-time judge to serve on a mayor’s committee to encourage the legislature to mandate drug testing of students, or on a committee to recommend individuals for appointment by the mayor to various judicial vacancies. Opinions 06-120; 94-37 (Vol. XII). This Committee also determined that a judge should not recommend individuals for appointment to the municipal charter revision commission, because that commission did not involve the law, the legal system or the administration of justice. 22 NYCRR 100.4(C)(2)(a); Opinion 99-100 (Vol. XVIII).

         Therefore, a judge should not serve on a mayor’s committee which, among other things, recommends individuals for potential appointment as City Marshals.