Opinion 11-05

January 27, 2011

Digest:         Where lawsuits are reasonably anticipated relating to conditions in the local jails, and jail conditions have been a matter of substantial local controversy, a judge may not serve as a member of a legislatively-created Corrections Advisory Board that is tasked with providing suggestions to the legislative and executive branches for improving the local jails and forwarding complaints about jail conditions to the sheriff’s office for investigation.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.4(C)(3)(a)(I)-(ii); Opinions 07-46; 05-141; 01-64 (Vol. XX); 99-74 (Vol. XVIII); 88-150 (Vol. III).

Opinion:

An administrative judge asks whether he/she may permit a judge who is subject to his/her supervision to serve as a member of a local Community Corrections Advisory Board. The inquiring judge states that there have been “a lot of lawsuits arising out of conditions in [the local] jails,” and anticipates additional similar lawsuits and issues to be raised in civil and criminal proceedings. According to information the judge provided, the local legislature established the Corrections Advisory Board to serve “in an advisory capacity” to the local legislature, sheriff, and executive to help improve the programs, functions, and management of the local jails. One of the enumerated functions of the Corrections Advisory Board is to “[r]eceive complaints regarding the Correctional Facilities from the public and refer such complaints to the [sheriff’s office] for investigation.”

         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 engage in extra-judicial activities that are not incompatible with judicial office and 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 (see 22 NYCRR 100.4[A][1]-[3]). 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 (see 22 NYCRR 100.4[C][2][a]). A judge may be a member of an organization or governmental agency devoted to the law, the legal system or the administration of justice, as long as it is not likely that the entity will be engaged in proceedings that ordinarily would come before the judge (see 22 NYCRR 100.4[C][3][a][I]) and, if the judge is full-time, as long as the entity is not engaged regularly in adversary proceedings in any court (see 22 NYCRR 100.4[C][3][a][ii]).

         Applying these rules, the Committee has advised that, even where a particular organization itself would not ordinarily come before the judge or engage in adversary proceedings in any court, a judge’s involvement with that organization may still reflect adversely upon impartiality or interfere with the performance of judicial duties (see Opinion 88-150 [Vol. III]). Thus, the Committee advised that a judge who hears abuse and neglect cases should not serve on the board of directors of a county task force on child abuse and neglect, because the organization’s “public education function and its name alone” create a possible appearance of partiality or interference with the performance of judicial duties (id.[noting that the task force “does not appear in court or file amicus briefs”]). The Committee also has advised that involvement with a particular organization, which does not itself appear in court, may nonetheless cast reasonable doubt on the judge’s independence and capacity to serve impartially when “the organization in question is involved in issues which will come before this judge” (Opinion 07-46). Similarly, the Committee has advised that a Family Court judge should not serve on the board of directors of a local advocacy organization involved in public lobbying concerning various family and children’s issues. The Committee found it “inappropriate for a judge to serve on [such board] ... where issues championed by that organization are directly related to issues which the judge may well be called upon to address in his or her judicial capacity” (Opinion 01-64 [Vol. XX]).

         Here, the Corrections Advisory Board is involved in fielding complaints regarding the local correctional facilities, aspects of which are likely to come before judges subject to the inquiring judge’s supervision in their judicial capacity. Under these circumstances, serving on that Board would be incompatible with the judges’ judicial duties and would also cast doubt on their independence and impartiality (see Opinion 07-46). Moreover, due to the frequency of litigation over local jail conditions, it appears that the Corrections Advisory Board’s work is likely to become controversial, further rendering participation incompatible with judicial office (see Opinions 05-141; 99-74 [Vol. XVIII]). Thus, the inquiring administrative judge should not permit a judge subject to his/her supervision to serve on the local Corrections Advisory Board.