Opinion 11-41

April 28, 2011

Digest:         A court attorney-referee (1) may not serve on a Town Zoning Board of Appeals, (2) may serve on a county legislature’s citizen’s advisory committee on domestic violence, and (3) may participate in a group that is working with a local mediation center and service providers to informally explore possible methods for parties in highly contentious custody cases to help resolve their disputes without repeated court intervention.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(B); 100.4(C)(2)(a); 100.4(G); 100.6(A); Opinions 10-115; 07-188; 06-83; 05-80; 90-27 (Vol. V); Town Law §267; Knight v Amelkin, 68 NY2d 975 (1986); Halperin v City of New Rochelle, 24 AD3d 768 (2d Dep’t 2005); Allan and Allan Arts Ltd. v Rosenblum, 201 AD2d 136 (2d Dep’t 1994).

Opinion:

         The inquiring court attorney-referee ,who hears and determines financial matrimonial matters (but not child custody cases), and conducts foreclosure conferences, asks whether service is permissible on (1) the Town Zoning Board of Appeals, (2) a county legislature’s citizen’s advisory committee on domestic violence, and (3) “an unofficial exploratory committee” is considering how to offer “mediation-like services” for “‘high conflict’ parties in custody cases” to help them resolve disputes “without continued appearances in Family Court.”

         Court attorney-referees, as quasi-judicial officials, must follow the Rules Governing Judicial Conduct in performing “their judicial functions and otherwise shall so far as practical and appropriate use such rules as guides to their conduct” (22 NYCRR 100.6[A]).

         A judge must avoid even the appearance of impropriety in all activities (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]). Thus, a judge must conduct all extra-judicial activities so they do not (1) cast reasonable doubt on the judge’s ability to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office (see NYCRR 100.4[A][1]-[3]). Also, a full-time judge may not accept appointment to a governmental committee or other governmental position 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]).

          The Committee notes that a Town Zoning Board of Appeals is an administrative or quasi-administrative agency created under the Town Law (see generally Town Law §267; Knight v Amelkin, 68 NY2d 975 [1986]; Halperin v City of New Rochelle, 24 AD3d 768 [2d Dep’t 2005], lv denied 85 NY2d 921 [1995], cert denied 516 US 914 [1995]; Allan and Allan Arts Ltd. v Rosenblum, 201 AD2d 136 [2d Dep’t 1994], lv dismissed 6 NY3d 890 [2006], lv denied 7 NY3d 708 [2006]). In the Committee’s view, a court attorney-referee, like a full-time judge, may not accept appointment to a governmental position 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]). Moreover, the inquirer states that “[o]ccasionally,” the board must interpret the Town’s zoning law to resolve a matter. The Rules Governing Judicial Conduct specifically prohibit a full-time judge/quasi-judicial official from practicing law, except in very limited circumstances not present here (see 22 NYCRR 100.4[G]). Therefore, a court attorney-referee should not serve on a Town Zoning Board of Appeals.

         As for membership on a county legislature’s citizen’s advisory committee on domestic violence, the inquirer says the committee’s purpose is “to solicit advice and recommendations from the community with respect to domestic violence and to periodically report to the county legislators” and that committee members are subject to confirmation by the county legislature. The inquirer notes he/she does not handle domestic violence cases. In Opinion 90-27 (Vol. V), the Committee advised that a law clerk may serve on a county legislature’s citizen’s advisory committee on domestic violence created to solicit relevant advice and recommendations from the community and to report periodically to the county legislators. The Committee sees domestic violence issues as related to the law, the legal system and the administration of justice (see id.; see also Opinion 06-83 [noting that such a committee “[i]s ... not an advocacy group and play[s] no role in the prosecution of domestic violence cases”]). For the same reason, the inquiring court attorney-referee may accept appointment to a county legislator’s citizen’s advisory committee on domestic violence. However, the inquirer should ensure that his/her participation in the committee does not interfere with his/her regular court duties (see 22 NYCRR 100.4[A][3]) and that the committee’s membership is not so imbalanced as to cast doubt on the inquirer’s fairness and impartiality (see 22 NYCRR 100.4[A][1]).

         Regarding participation in “an unofficial exploratory committee,” the inquirer notes that the group currently includes a Family Court mediator and a professor, and works with a local mediation center to consider alternative ways for “high conflict parties in custody cases” to resolve disputes “without continued appearances in Family Court.” The group discusses ideas and “solicit[s] advice and information from service providers dealing with high conflict cases.” The Committee sees this proposed extra-judicial activity as one to improve the administration of justice. It is therefore permissible (see generally 22 NYCRR 100.4[C][2]; 100.4[B]; see also Opinion 10-115, quoting Opinion 07-188 [“the Rules specifically encourage judges to become involved in extra-judicial activities that concern the improvement of the law, the legal system and the administration of justice”] [internal quotation marks and brackets omitted]).

         The Committee takes no position on whether the Rules Governing Conduct of Non-Judicial Court Employees place additional restrictions on the inquirer. That question must be resolved by the Unified Court System’s Office of Court Administration, the agency with the ultimate authority to interpret Part 50 (see Opinion 05-80; Contact: ETHICS HELPLINE: 1-888-28ETHIC).