Opinion 07-156

October 18, 2007

Digest:         (1) A judicial hearing officer (JHO) who is on the board of directors of one agency may preside over cases involving an attorney from a “sister agency” under the same umbrella organization, as long as the JHO has no supervisory authority over such attorney and is not involved in the daily operations of the agency.

(2) A JHO may not serve on a mayor’s Committee on the Judiciary.

Rules:          22 NYCRR 100.4(A)(4) and 100(A)(4)(1)-(3); 100.4(C)(3)(b); 100.5(A)(1); 100.6(A); Opinions 06-154/06-167; 06-73; 06-72; 03-133; 03-07; 00-54/00-56 (Vol. XIX); 94-37 (Vol. XII).

Opinion:

         A retired Family Court judge, now serving as a JHO in a family court, is a member of the board of directors of a community legal services agency (community agency) and previously served as Interim Executive Director of such agency. The community agency is one of a number of constituent agencies existing under the umbrella of a parent organization. Each constituent agency operates through a separate board of directors. The JHO asks if he/she may continue to serve on the board of directors of the community agency and participate in the services provided by the agency, such as educational seminars, fund raising activities, and community meetings. The JHO also asks if he/she may preside in cases where respondents are represented by attorneys who work for a constituent agency of the parent organization other than the community agency for which the inquirer serves as a board member.

         The inquirer acknowledges that he/she may not preside over cases in which a party is represented by the community agency he/she serves as a board member. The inquirer also notes that in his/her capacity as Interim Executive Director of the community agency, he/she had no supervisory responsibility for, or any personal interaction with, any of the other constituent agencies of the parent organization.

         As quasi-judicial officials, JHOs must comply with the Rules Governing Judicial Conduct in the performance of their judicial duties, and otherwise must, so far as practical and appropriate, use such rules as guides to their conduct (see 22 NYCRR 100.6[A]; Opinion 03-07). Accordingly, a JHO’s extrajudicial activities must not cast doubt on his/her capacity to act impartially as a JHO, must not detract from the dignity of the office, and must not interfere with the proper performance of JHO duties (see 22 NYCRR 100.4[A][1]-[3]).

         A JHO may serve on the board of directors of a legal services organization, but may not engage in fund-raising activities (see 22 NYCRR 100.4[C][3][b]; Opinion 03-07). A JHO also may participate in educational seminars and community meetings that are open to both the prosecution and defense bars (see 22 NYCRR 100.4[A][1]; Opinions 06-73; 06-72; cf. 06-154/06-167 00-54/00-56 [Vol. XIX]).

         This Committee concludes, therefore, that the inquirer may preside over cases involving a constituent agency other than the agency for which he/she serves as a board member so long as he/she is not involved in the daily operations and has no supervisory responsibility for the attorneys of that agency and may participate in educational seminars and community meetings subject to the limitations already stated.

         The JHO also asks if he/she may serve as a member of a mayor’s Judiciary Committee, which is responsible for initial investigations and reports regarding candidates for Family Court, and for civil and criminal courts. A full-time judge may not serve on such a Judiciary Committee as such service could be perceived as improper involvement in the political process (see Opinion 94-37 [Vol. XII]; 22 NYCRR 100.5[A][1]). For the same reason, a JHO may not serve on a Judiciary Committee (see 22 NYCRR 100.6[A]) .