Opinion 09-60

March 12, 2009

Digest:         Assuming it is legal to do so, a judge who is subject to §36.1(a)(11) of the Rules of the Chief Judge concerning appointments by the court may permit a public administrator who practices law with the judge’s former campaign treasurer to remain in office and is not required to disclose the public administrator’s relationship to the judge’s former campaign treasurer.

Rules:          Surrogates Court Procedure Act §1202; 22 NYCRR 36.1(a)(11), (c)(4)(ii); 101.1; 100.2; 100.2(A)

Opinion:

         A Surrogate Court Judge asks whether he/she may allow the Public Administrator, whose appointment to that position predated the judge’s election by a number of years, to remain in that position. The judge advises that one of the Public Administrator’s partners served briefly as the interim treasurer for the judge’s preliminary judicial campaign committee.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2), must respect and comply with the law, 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]). Pursuant to the Rules of the Chief Judge concerning court appointments, the inquiring judge may not appoint anyone who has served as his/her campaign treasurer or anyone associated with the law firm of that person for a period of two years following the judge’s election (see 22 NYCRR 36.1[a][11], [c][4][ii]).

         The inquiring judge notes that a public administrator remains in office unless removed by the court (see Surrogates Court Procedure Act §1202). Therefore, the judge asks whether he/she can allow the current public administrator to remain in office without violating the Chief Judge’s rule which would prohibit the judge from appointing the current holder of that office.

         As the Committee is charged only with issuing advisory opinions concerning issues related to ethical conduct, proper execution of judicial duties, and possible conflicts between private interests and official duties (see 22 NYCRR 101.1), the Committee does not address any legal issue concerning the current public administrator remaining in office. However, assuming it is legal for the current public administrator to remain in office, it is the Committee’s view that the inquiring judge does not violate the rules of the Chief Judge by allowing him/her to do so. Part 36 of the Rules of the Chief Judge governs appointments by judges. Under the facts presented, the inquiring judge has no appointment to make as the position is already filled. Nor does the Committee interpret §36.1[a][11] of the Chief Judge’s Rules to require the inquiring judge to remove the current public administrator and to appoint someone else. Therefore, assuming it is otherwise legal to do so, the inquiring judge may allow the current public administrator to remain in office, and is not required to disclose the public administrator’s relationship to the judge’s former campaign treasurer.