Opinion 11-15

January 27, 2011

Digest:         A JHO may serve as hearing officer for a municipality’s disciplinary hearing involving a police officer if the JHO is not on the JHO panel for the municipality’s court and does not preside in criminal or other police related matters.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A); 100.6(A); Opinions 10-191; 09-65; 07-215; 06-09; 00-14; 98-41 (Vol. XVI); 95-72 (Vol. XIII); 89-40 (Vol. III); 88-148 (Vol. III).

Opinion:

         A Judicial Hearing Officer (JHO) asks whether he/she may serve as the hearing officer for a municipality’s disciplinary hearing involving a police officer. The inquirer advises he/she is not on the JHO panel for any court in the municipality and does not preside in criminal cases or other police related matters as a JHO.

         Judicial hearing officers must comply with the Rules Governing Judicial Conduct in the performance of their judicial duties and "otherwise shall so far as practical and appropriate use such rules as guides to their conduct" (22 NYCRR 100.6[A]). Therefore, a judicial hearing officer 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 judicial hearing officer may engage in extra-judicial activities that cast no reasonable doubt on his/her capacity to act impartially as a JHO; do not detract from the dignity of his/her office; do not interfere with the proper performance of his/her duties; and are not incompatible with his/her office (see 22 NYCRR 100.4[A]).

         The Committee previously has advised that a part-time judge may serve as a hearing officer as long as doing so is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s judicial duties (see Opinions 07-215 [part-time town justice may accept position as hearing officer for local city housing authority]; 00-14 [part-time town justice may accept appointment to serve as hearing officer in a disciplinary proceeding involving a firefighter]; 98-41 [Vol. XVI] [part-time town justice may preside as a hearing officer in a disciplinary hearing against a village police officer of a village located outside the town where the justice presides]; 95-72 [Vol. XIII] [part-time city court judge may serve as hearing officer in a student disciplinary matter]; 89-40 [Vol. III] [town justice may serve as a hearing officer in a disciplinary proceeding brought by a county against a county employee pursuant to section 75 of the Civil Service Law]; 88-148 [Vol. III] [town justice may serve as hearing officer for county health department]).

         In response to prior inquiries concerning JHOs, the Committee generally has applied opinions about the conduct of part-time judges to similar conduct by JHOs (see Opinion 10-191; 09-165; 06-09). Therefore, subject to the same limitations discussed above for part-time judges who serve as hearing officers, a JHO may serve as the hearing officer for a municipality’s disciplinary hearing involving a police officer if the JHO is not on the JHO panel for such municipality’s court and does not preside in criminal or other police related matters.