Opinion 10-28

March 10-11, 2010

Digest:         A part-time judge may serve as an unpaid commissioner of the New York State Council of Parks, Recreation, and Historic Preservation, subject to certain limitations.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.3(E)(1); 100.4(A)(1)-(3); 100.4(C)(1); 100.4(C)(2)(a); 100.6(B)(1); Opinions 09-99; 09-70; 99-74 (Vol. XVIII); 99-36 (Vol. XVII); Joint Opinion 08-58/08-66.

Opinion:

         A part-time judge asks whether he/she may serve as an unpaid commissioner of the New York State Council of Parks, Recreation, and Historic Preservation. According to the judge, his/her duties would include "meeting with State Legislators and other elected officials to educate them about Parks issues and advocate for State funding and policy priorities, and appearing at public hearings and meetings concerning projects that impact State Parks and Historic Sites." The judge states he/she will not assist in fund-raising on the Council’s behalf, and that he/she would disqualify him/herself "from any issues involving the NYS Park Police Agency."

          A judge must avoid impropriety and its appearance in all the judge's activities (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may nonetheless engage in extra-judicial activities if they are not incompatible with judicial office and the judge's participation does 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 (see 22 NYCRR 100.4[A][1]-[3]).

          While a full-time judge may not appear at a public hearing before an executive or legislative body or official, except on matters concerning the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][1]) and may 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 (see 22 NYCRR 100.4[C][2][a]), a part-time judge is not so restricted (see 22 NYCRR 100.6[B][1]).  

         Therefore, given the duties and limitations the judge describes, he/he may serve as a commissioner of the New York State Council of Parks, Recreation, and Historic Preservation (see 22 NYCRR 100.4[C][1]; 100.4[C][2][a]; 100.6[B][1]; see also e.g. Opinions 09-99 [judge may serve on county community services board]; 99-36 [Vol. XVII] [judge may join county commission involving women's issues]). However, the judge should avoid involvement in issues of public controversy (see Opinions 09-70; 99-74 {Vol. XVIII]) and must abide by the generally applicable rules governing judicial speech and conduct, including the prohibition against making any public comment about a pending or impending proceeding within the United States or its territories (see 22 NYCRR 100.3[B][8]).

         If the judge's commission service could cause the judge's impartiality to reasonably be questioned in a particular matter, the judge must disqualify him/herself (see 22 NYCRR 100.3[E][1]). If such disqualifications are so frequent that they interfere with the judge’s proper performance of his/her judicial duties, then the judge cannot serve simultaneously in both capacities (see 22 NYCRR 100.4[A][1]-[3]; Joint Opinion 08-58/08-66). That also is the case if, as Commissioner, the judge is regularly involved in matters of public controversy or if his/her role as Commissioner reasonably casts doubt on his/her capacity to act impartially as a judge (see 22 NYCRR 100.4[A][3]; Opinion 09-70).