Opinion 09-35

January 29, 2009

Note: Please see Opinion 07-155/98-31 (issued in April 2017) and seek further guidance from the Committee before relying on this opinion.

Digest:         A judicial hearing officer may serve on a municipality's advisory commission on municipal code revision.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A); 100.(4)(C)(2)(a); 100.6(A); 100.6(B)(1); Opinions 08-201; 06-132; 98-31(Vol. XVI); 90-167(Vol. VI).

Opinion:

         A judicial hearing officer asks whether he/she may serve on a town's temporary advisory commission to study and make recommendations for amendments to the town's code. A law professor will serve as chair of the commission. The members of the commission will serve without compensation, and town employees, volunteer members of existing town committees, and members of any political party committee are ineligible to serve. Town code amendments that the commission recommends will be subject to public referendum.

         Judicial hearing officers must comply with the Rules Governing Judicial Conduct in the performance of their judicial duties and "otherwise shall so far as practical and appropriate use such rules as guides to their conduct" (22 NYCRR 100.6[A]). Therefore, a judicial hearing officer must avoid impropriety and the appearance of impropriety in all his/her 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]). A judicial hearing officer may engage in extra-judicial activities that do not cast reasonable doubt on the judge's capacity to act impartially as a judge; detract from the dignity of judicial office; interfere with the proper performance of judicial duties; or that are not incompatible with judicial office (see 22 NYCRR 100.4[A]). Although a full-time judge may not accept appointment to a governmental committee or commission (see 22 NYCRR 100.4[C][2][a]), the same restriction does not apply to judicial hearing officers (see 22 NYCRR 100.6[B][1]; Opinion 08-201).

         The Committee previously has advised that it is not incompatible with judicial office for a part-time city court judge to serve on a commission to review a city charter and to provide recommendations for amendments (see Opinion 98-31 [Vol. XVI]); to consult with the mayor and the village board of trustees concerning clarification and improvements of the proposed local code of ordinances (see 90-167 [Vol. VI]); or to serve on a municipality’s ethics committee that issues advisory opinions and proposes changes to the municipality’s code of ethics, but does not investigate ethics violations (see Opinion 06-132). Therefore, in the Committee’s view, it is not incompatible with judicial office for the judicial hearing officer in the present inquiry to serve on a municipality's advisory commission on municipal code revision.