Opinion 11-153

January 26, 2012

Digest:         A judge should not, even on an interim basis, volunteer to drive defendants, who are convicted in the judge’s court and sentenced to perform community service, to locations where the community service is to be performed.

Rules:          22 NYCRR 100.1; 100.2; 100.2(A); 100.3(A); 100.3(E)(1)(b)(iii); Opinions 09-94; 07-115; 00-96 (Vol. XIX); 99-104 (Vol. XVIII); 96-123 (Vol. XV); 96-65 (Vol. XIV).

Opinion:

         The inquiring judge states that he/she often approves plea agreements contingent on the defendants performing community service. The judge further states that the municipality where the court is located had provided a van and a driver to transport defendants to the locations where the community service was performed. According to the judge, the van driver is no longer available, and the judge is concerned that “a valuable service will be lost to our community.” To avoid interruption or loss of this service, the judge asks whether he/she may volunteer to drive the van, on an interim basis, during regular court hours. The judge states that an individual will accompany him/her to supervise the defendant/passengers.

         A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1), avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). And, a judge’s judicial duties take precedence over all a judge’s other activities (see 22 NYCRR 100.3[A]).

         In the Committee's view, the inquiring judge's proposed conduct, though well-intentioned, is incompatible with judicial office because implementing criminal sentences is a function of the executive branch (see e.g. Opinions 09-94 [local justice should not prepare materials in response to a request for certain information from the District Attorney’s office]; 07-115 [judge should not comply with a District Attorney’s request to provide information about court cases specifically and exclusively for the District Attorney’s benefit]; 99-104 [Vol. XVIII] [village justice should not attend monthly meetings of the village government's department heads which are presided over by the Mayor]; 96-65 [Vol. XIV] [judge should not serve on New York State Motor Vehicle Theft and Insurance Fraud Prevention Demonstration Board]).¹ In addition, the close interaction with defendants after they have been conditionally sentenced and before final disposition of a matter would create an appearance of impropriety (see 22 NYCRR 100.2) and could result in the judge becoming a material witness to defendants’ activities prior to completion of community service, thereby necessitating the judge’s disqualification (see 22 NYCRR 100.3[E][1][b][iii]).

         Accordingly, the inquiring judge should not, even on an interim basis, volunteer to drive the van used to transport defendants to locations where community service is to be performed.

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     ¹In contrast, the Committee has approved part-time judges working for correctional facilities, as long as the job responsibilities are compatible with judicial office (see e.g. Opinions 00-96 [Vol. XIX] [part-time judge may be employed as tractor trailer operator by the New York State Department of Correction delivering to and from correctional facilities]; 96-123 [Vol. XV] [part-time judge may work as hair stylist at the county jail provided that no inmate sentenced by the judge uses the judge as hair stylist]).