Opinion 06-72

April 27, 2006

Digest:         It is ethically permissible under the Rules Governing Judicial Conduct for judges, court personnel, and representatives of court-related entities to serve on a Steering Committee established, pursuant to a federal grant, to make a comprehensive assessment of current practices employed in a particular county involving sex offenders. They should not, however, make an advance commitment to accept and implement resulting recommendations.

Rules:          22 NYCRR 100.1, 100.4(A)(1); 100.4(C)(2)(a); Joint Opinion 00-54/56 (Vol. XIX); Opinions 99-111 (Vol. XVIII); 99-61 (Vol. XVIII); 95-34 (Vol. XIII).

Opinion:

         An Administrative Judge seeks the advice of the Advisory Committee concerning participation by judges, court personnel, and court-related entities as members of a Steering Committee established pursuant to a grant from the United States Bureau of Justice Assistance. The purpose of the grant “is to enhance the management of sex offenders in County, including development of the County Sex Offense Court.” This Steering Committee will make a comprehensive assessment of the current practices used in the county to manage sex offenders and will make recommendations for improvement. The inquirer goes on to state that “[w]hile the Steering Committee will consider issues relating to the processing and disposition of sex offenses . . .generally, the members will not recommend or discuss outcomes for particular cases. . .Any recommendations the Steering Committee makes will be implemented by the appropriate member agency.” The member agencies are both governmental and non-governmental, and include representatives of the court system and the Presiding Justice of the Sex Offense Court, as well as members of the defense bar.

         In the opinion of this Committee, under the Rules Governing Judicial Conduct, it is entirely appropriate that members of the judiciary, court personnel and court-related organizations participate in the work of the Steering Committee as described in the inquiry. With respect to the judiciary, section 100.4(C)(2)(a) specifically allows judges to participate in the work of governmental committees devoted to the improvement of the law, the legal system and the administration of justice. 22 NYCRR 100.4(C)(2)(a). Indeed, in the present instance, the mandate of the Steering Committee could not be effectively carried out without participation by the judiciary. Moreover, we note that the Steering Committee’s membership represents a wide variety of persons and organizations, including law enforcement and the defense bar. Thus, there is no danger that the Steering Committee might be perceived as an advocacy group, thereby casting doubt on the impartiality of the judiciary in violation of section 100.4(A)(1) of the Rules Governing Judicial Conduct. 22 NYCRR 100.4(A)(1); Opinions 99-111 (Vol. XVIII); Opinions 95-34 (Vol. XIII). Cf. Joint Opinion 00-54/56 (Vol. XIX).

         We do, however, have a concern with respect to the statement of the inquirer that “[a]ny recommendations the Steering Committee makes will be implemented by the appropriate member agency.” While it is not entirely clear what is intended by the statement, in our view the judiciary cannot make an advance commitment to accept and implement the recommendations of the Steering Committee. Such a prior commitment, whether by an individual judge or representatives of the court system, would, in our opinion, impinge upon the independence of the judiciary, the protection and preservation of which are incumbent upon all judges. 22 NYCRR 100.1; see Opinion 99-111 (Vol. XVIII). Cf. 99-61 (Vol. XVIII). Apart from this caveat, the Advisory Committee perceives no ethical impediment to the judge serving on the Steering Committee.

         We note, however, that the employee is also subject to Part 50 of the Rules of the Chief Judge. This Committee is not in a position to address the specific propriety of the court employee’s involvement in the Steering Committee under Part 50.