Opinion 11-50

April 28, 2011

Digest:         A court attorney-referee may not belong to local community boards as they focus on fact or policy matters other than those involving the improvement of the law, the legal system or the administration of justice.

Rules:          22 NYCRR 100.4(C)(2)(a); 100.4(F), (G); 100.6(A); 100.6(B)(1); Opinions 11-41; 09-165; 09-17; 08-201; 08-12; 07-198; 02-45; 00-12 (Vol. XVIII); 99-84 (Vol. XVIII); 95-119 (Vol. XIII); 92-73 (Vol. IX); 90-173 (Vol. VI).

Opinion:

         A court attorney-referee asks whether he/she may join a local community board. The inquirer notes that prior Opinion 90-173 (Vol. VI) advises that a judicial hearing officer may so serve, subject to certain caveats.

         The Committee previously has advised that court attorney-referees perform judicial functions within the judicial system and must therefore comply with the Rules Governing Judicial Conduct in the performance of their judicial functions and otherwise so far as practical and appropriate use such Rules as guides to their conduct (see 22 NYCRR 100.6[A]; Opinions 08-12; 07-198; see also 95-119 [Vol. XIII] [“The inquirer is a full-time employee of the Unified Court System whose actual job title is ‘Court Attorney-Referee’. ...The Title Standard promulgated for that position by the Office of Court Administration makes it clear that such persons may be exercising a quasi-judicial function in that they are authorized to conduct hearings, take testimony and issue findings of facts and confidential opinions”]).

         However, in certain areas, the Rules distinguish between full-time and part-time judges (see 22 NYCRR 100.6[B][1]). In applying the Rules to quasi-judicial officials, the Committee has similarly distinguished between full-time and part-time quasi-judicial positions. For example, a full-time judge may not practice law or serve as a private arbitrator (see 22 NYCRR 100.4[F]-[G]), and neither may a full-time quasi-judicial official (see Opinions 99-84 [Vol. XVIII] [support magistrate may not practice law]; 92-73 [Vol. IX] [support magistrate may not serve as a private arbitrator]). By contrast, a part-time judge is exempt from these restrictions (see 22 NYCRR 100.6[B][1]) as is a part-time quasi-judicial official (see Opinions 09-165 [judicial hearing officer may practice law]; 08-201 [judicial hearing officer may serve as a private arbitrator]).

         The Committee now concludes that court attorney-referees, like support magistrates, are full-time and generally subject to the same rules as full-time judges so far as practical and appropriate (see Opinion 00-12 [Vol. XVIII] [noting a court attorney-referee, like a support magistrate, “is also a full-time quasi-judicial position”]).

         Consequently, a court attorney-referee, like a full-time judge or support magistrate, 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 09-17 [applying this prohibition to support magistrates]).

         According to the municipal charter, the powers and responsibilities of community boards include: holding public or private hearings or investigations with respect to “any matter relating to the welfare of the district and its residents”; preparing assessments of the district’s current and probable future needs and recommendations for programs or activities to meet those needs; holding public hearings on the district’s capital needs and the allocation and use of government funds earmarked for community development activities; evaluating the progress of capital projects within the district; reviewing applications and proposals of public agencies and private entities for the use or development of land located in the district; and evaluating the quality and quantity of services provided by agencies within the district. As these and other responsibilities involve issues of fact and policy in matters other than the improvement of the law, the legal system, or the administration of justice, a court attorney-referee may not accept appointment to a community board (see 22 NYCRR 100.4[C][2][a]).

         The Committee sees Opinion 90-173 (Vol. VI) as only applying to individuals not bound by Section 100.4(C)(2)(a), such as judicial hearing officers or part-time judges. It does not apply to individuals subject to Section 100.4(C)(2)(a), such as full-time judges, court attorney-referees, or support magistrates (see generally Opinions 11-41 [court attorney-referee may not serve on town zoning board of appeals]; 09-17 [support magistrate may not serve on a town planning board]; 02-45 [full-time judge should not serve on a community services board of a municipal department of health]).