Opinion 11-148

December 8, 2011

Digest:         A full-time court employee who has been assigned to serve part-time as a special referee while continuing to fulfill the full-time non-judicial and administrative responsibilities of his/her actual job title may serve on a municipal community board that is concerned with fact or policy issues in matters other than the improvement of the law, the legal system or the administration of justice.

Rules:        22 NYCRR 100.4(C)(2)(a); 100.6(A); 100.6(B)(1); Opinions 11-50; 95-119 (Vol. XIII); 90-173 (Vol. VI).

Opinion:

         The inquiring full-time court employee, an attorney with administrative responsibilities within the court system, states that he/she has recently “been designated to serve as a [s]pecial [r]eferee (on a part-time -- 20% -- basis) while continuing” to fulfill the non-judicial and administrative duties of his/her actual job title. The inquirer asks whether he/she may continue to serve on a municipal community board now that he/she has assumed part-time quasi-judicial functions as a special referee.

         Special referees perform judicial functions within the judicial system and therefore must comply with the Rules Governing Judicial Conduct in the performance of those functions and otherwise so far as practical and appropriate use such Rules as guides to their conduct (see 22 NYCRR 100.6[A]; Opinion 11-50).

         A full-time judge or quasi-judicial official may not accept appointment to a governmental committee or commission or other governmental position that is concerned with fact or policy issues 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]; Opinion 11-50 [court attorney referee may not serve on local community board]). However, a part-time judge or quasi-judicial official is exempt from this restriction (see 22 NYCRR 100.6[B][1]; Opinion 90-173 [Vol. VI], clarified by Opinion 11-50 [part time Judicial Hearing Officer may serve on local community board]).

         The Committee has previously noted that “the usual situation with persons who are called Special Referees” is that their “actual job title is ‘Court Attorney-Referee’” (see Opinion 95-119 [Vol. XIII]). Here, however, the inquirer’s actual job title is not that of “court attorney-referee” or any other quasi-judicial position. Rather, the inquirer’s actual job title accurately reflects the inquirer’s full-time non-judicial and administrative role in the court system. And according to the inquirer, while retaining that job title, he/she is now designated to also serve as a special referee for no more than 20% of his/her time, while continuing to fulfill all the non-judicial functions of his/her actual job title. Given these facts, the Committee concludes that the inquiring court employee is a part-time quasi-judicial official who is not bound by Section 100.4(C)(2)(a), and therefore may serve on a municipal community board.