Opinion 09-119

June 3-4, 2009

Digest:         A full-time judge may serve on a regional selection panel that recommends candidates to a bipartisan Commission for a one-year appointment to the White House Fellows program.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A) (1) - (3); 100.4(C)(2)(a); 100.4(C)(3); 100.5(A)(1); Opinions 02-113; 91-91 (Vol. VIII); 89-132 (Vol. V).

Opinion: 

         A full-time judge asks whether he/she may serve on a regional selection panel that recommends candidates for the White House Fellows program. According to the judge, the Fellows program is “a non-partisan program for leadership and public service, whose mission is ‘to give the Fellows first hand, high-level experience with the workings of the Federal government and to increase their sense of participation in national affairs.’” The judge advises that the regional selection panel interviews candidates and selects finalists for further evaluation by a bipartisan commission which then selects and appoints individuals to serve a one-year fellowship either at the White House or a Cabinet Department.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). While a judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]), a judge may engage in extra-judicial activities that do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). A judge “may be a member or serve as an officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][3]), but “a full-time judge shall not accept appointment to a governmental committee or commission or other governmental position 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]). And, a judge shall not directly or indirectly engage in any prohibited political activities (see 22 NYCRR 100.5[A][1]).

         This Committee previously has advised that a judge may not serve on a congressperson’s advisory committee to recommend candidates for appointment to military academies as doing so “may be perceived as participating in a political or quasi-political function” (Opinion 89-132 [Vol. V]; see also Opinion 91-91 [Vol. VIII]) and as that committee was “not concerned with the improvement of the law, the legal system or the administration of justice” (Opinion 89-132 [Vol. V]).

         In this Committee’s view, the circumstances in the present inquiry are distinguishable. Although recommending candidates for the White House Fellows program is not a matter concerned with the improvement of the law, the legal system or the administration of justice (see Opinion 89-132 [Vol. V]), it also does not concern “issues of fact or policy” and is thus not within the direct prohibition of 22 NYCRR 100.4(C)(2)(a). Moreover, because the recommendations here will be made to a bipartisan selection committee rather than to a single politician, it is not likely that the judge will be perceived as participating in a political or quasi-political function (see Opinions 91-91 [Vol. VIII]; 89-132 [Vol. V]; see also Opinion 02-113 [permitting service on a merit selection panel to identify qualified candidates to fill the position of United States District Court Magistrate Judge, where the federal statute and regulations “emphasize the non-political nature of the appointment”]). Accordingly, the judge may participate in the regional selection panel for the White House Fellows program.