Opinion 11-134

January 26, 2012

Digest:         Under the circumstances presented, a judge may address a local school board’s suspension policy committee regarding court procedures and ways in which the court’s orders could intersect with a school’s suspension policy but may not give the committee legal advice nor accept an appointment as a committee member or advisor.

Rules:        22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.4(A); 100.4(B)(8); 100.4(C)(1); 100.4(C)(2)(a); Opinions 11-68; 05-141; 97-143; Joint Opinion 89-157/90-07 [Vol. V]).

Opinion:

         A full-time judge who presides in cases involving school-aged minors asks whether he/she may serve as a member of, or advisor to, a committee created by a local school board in conjunction with a teachers’ union, which will review the school board’s suspension policy.¹ The judge has advised that he/she will not participate in drafting or revising the school board’s suspension policy but will explain ways in which the court’s orders could or might intersect with the policy, for example, by incorporating conditions relating to school attendance into court orders.

         A judge must always avoid even the appearance of impropriety (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 full-time judge shall 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 or except when acting pro se in a matter involving the judge or the judge’s interests (see 22 NYCRR 100.4[C][1]) and shall not accept appointment to a governmental committee 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 explain the procedures of the court for public information (see 22 NYCRR 100.3[B][8]) if doing so does not cast reasonable doubt on the judge’s capacity to act impartially and is not incompatible with judicial office (see 22 NYCRR 100.4[A]).

         In the Committee’s view, the inquiring judge may address the suspension policy committee about court processes and procedures, including possible interactions between court orders and the proposed policy, because this is a matter concerning the law, the legal system, or the administration of justice (see 22 NYCRR 100.3[B][8]; 100.4[C][1]). The judge does not propose to, and should not, discuss any pending or impending cases (see 22 NYCRR 100.3[B][8]).

          To the extent this school board-created committee is a governmental committee or the agent of an executive body, it is one that is concerned primarily with issues of fact and policy that are primarily unrelated to improvement of the law, the legal system and the administration of justice (see 22 NYCRR 100.4[C][2][a]). Furthermore, the Committee has previously advised that judges may not serve on committees that focus on “political or controversial issues,” such as one that will recommend revisions to the town code (see Opinion 05-141) or a local school board (see Joint Opinion 89-157/90-07 [Vol. V]; see also generally Opinion 11-68 [discussing prior opinions]). In the Committee’s view, a committee’s task of dealing with school suspension policies is likely to generate substantial local controversy and is not directly related to the law, the legal system or the administration of justice.

         For these reasons, the inquiring judge should not serve as a member of or official advisor to the suspension policy committee.²

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            ¹For the purpose of this Opinion, the Committee assumes, without deciding, that the school board’s suspension policy committee may be considered a “governmental committee” or the agent of an executive body or official.

            ²Opinion 97-143 (Vol. XVI) (full-time judge may serve on an advisory committee to select new school district superintendent) is distinguishable, as such an advisory committee is not concerned with issues of fact or policy within the meaning of the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[C][2][a]).