Opinion 07-155

AMENDED AND REISSUED AS JOINT OPINION 07-155/98-31

October 18, 2007

NOTE: On April 5, 2017, the Committee released Joint Opinion 07-155/98-31, which supersedes the present opinion. It does not alter the result of Opinion 07-155, but it overrules Opinion 98-31. Please refer to the new Joint Opinion for the Committee’s current views.

Digest:         A Supreme Court Justice may not serve as a member of the County Charter Revision Commission, where the purpose of the Commission is to suggest changes and make recommendations for improving the laws and provisions contained in the County Charter.

Rules:          22 NYCRR 100.1; 100.4(C)(2)(a); 100.6(B)(1); Opinions 01-33; 99-100 (Vol. XVIII); 98-31 (Vol. XVI); 93-16 (Vol. X).

Opinion:

         A County Court Judge who is also an acting Supreme Court Justice asks whether he/she may accept an appointment to serve on his/her County’s Charter Revision Commission, with the mandate of suggesting changes and making recommendations to improve the laws and provisions contained in the City Charter.

         The Rules Governing Judicial Conduct provide that “[a] full-time judge shall not accept appointment to a governmental committee or commission . . . that is concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][2][a]). Here, the Charter Revision Commission will involve the broad examination of the County Charter. It is likely that the review will implicate issues of policy or of a political nature, including many issues which do not involve “the improvement of the law, the legal system or the administration of justice” (id.).

         Indeed, this Committee has previously opined that a full-time City Court judge could not serve on a Charter Revision Commission or even appoint members to an advisory committee to that Commission, because the advisory committee would be involved with issues that would “effectively impair judicial independence [by] enmesh[ing] the judiciary in what is essentially a political undertaking” and with issues that “bear on fundamental political concerns” (Opinion 99-100 [Vol. XVIII] citing 22 NYCRR 100.1; see also Opinion 93-16 [Vol. X] [full-time judge may not continue to serve on Citizen’s Advisory Committee which reviews facts and makes recommendations on local zoning laws]).

         We note that we have also previously advised that a part-time City Court Judge may serve on a commission to review the City Charter and to provide recommendations for amendment (see Opinions 98-31 [Vol. XVI]; 01-33). However, the different outcome in those circumstances flows directly from the inquirer’s status as a part-time judge, which, unlike a full-time judge, is not as restricted in engaging in outside activities (see 22 NYCRR 100.6[B][1]; cf. 22 NYCRR 100.4[C][2][a]).