Opinion 11-17

March 9-10, 2011

Digest:         A full-time judge, who is also an adjunct professor at a community college and member of the adjunct faculty association, may fully engage in all legal activities of the faculty association. The judge should not participate in a strike which violates the Taylor Law.

Rules:          22 NYCRR 100.2(A); 100.4(A)(1)-(3); 100.4(H)(1)(c)(2); 101.1; Opinions 93-07 (Vol. X); 90-126 (Vol. VI); 89-103 (Vol. IV).

Opinion:

         A full-time judge, who is also an adjunct professor at a community college, asks about participating in collective action as a member of the college’s adjunct faculty association. The judge advises that it “seems very likely” that the association will vote to strike against the college at the end of the semester. The judge believes that such a strike would violate the Taylor Law. The judge asks whether it is ethically permissible to participate in the proposed strike, to cross the anticipated picket line, or to participate in the association’s proposed “job action” by refusing to sign an employment contract for the next semester as a “showing of strength.”

         A judge must respect and comply with the law and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Although a judge may receive the ordinary compensation for a lecture or teaching a regular course of study at any college or university if the teaching does not conflict with the proper performance of judicial duties (see 22 NYCRR 100.4[H][1][c][2]), a judge must conduct all of his/her extra-judicial activities so they are not incompatible with judicial office and do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]).

         In Opinion 89-103 (Vol. IV), a judge, who was also a professor at a community college and a member in good standing of the college’s faculty association, stated that negotiations on a new contract had reached an impasse. The judge asked about his/her ethical obligations “if the faculty, in possible violation of the Taylor Law, should call a ‘strike’ or ‘job action’ and set up a picket line.” The Committee advised that the judge could “fully participate in all legal activities of the college’s faculty association,...[but] all the justice’s activities, including activities as a college professor, must comply with the law, including the Taylor Law” (Opinion 89-103 [Vol. IV]). Similarly, in Opinion 93-07 (Vol. X), the Committee advised that a Family Court judge who also is an adjunct professor at a community college may participate in the activities of the faculty union, but must do so within the framework of the law, including the Taylor Law.

         This Committee is not authorized to construe the Taylor’s Law’s provisions to decide which specific activities may or may not violate its provisions (see Opinion 89-103 [Vol. IV]; see also 22 NYCRR 101.1). To the extent the inquiring judge determines that participation in the proposed strike or other job-related activities would violate the Taylor Law, the judge should not participate in those activities (see 22 NYCRR 100.2[A]; Opinions 93-07 [Vol. X]; 90-126 [Vol. VI]; 89-103 [Vol. IV]).

         To the extent the judge determines that his/her participation in any “job action” or crossing a picket line would be lawful, this Committee believes the judge’s decision about whether to participate in such activities is a matter of the judge’s personal choice. The Committee believes the judge is in the best position to assess all relevant facts and circumstances, including any possible risks of personal injury or public controversy, as well as whether the judge’s participation might cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]).