Opinion 12-113

September 13, 2012

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         Under the circumstances presented, a full-time judge may serve on an advisory council to help develop a community-based approach for improving school attendance and thereafter advise the school’s site-based decision-making board.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); 100.4(A)(1)-(3); 100.4(C)(3)(a)-(b); Opinions 12-74; 11-149; 11-133; 11-110; 09-236; 02-63; 99-77 (Vol. XVIII); 99-21 (Vol. XVII); 93-108 (Vol. XII); 90-25 (Vol. V).

Opinion:

         A Family Court judge asks whether he/she may be a member of an advisory council developed to address absenteeism in a local public school. The council will have no decision-making authority. Instead, it will help develop a community-based approach to address the issue, by “advis[ing] the [school’s] site-based decision making board regarding ... what is being done now [to address truancy issues] and what can be done” in the future. It appears that the decision-making board plans to consider the council’s recommendations before asking the community for support. The judge indicates that, at this time, the council consists of seven school district employees (including the superintendent, principal, assistant principal, teachers, and directors in the areas of instruction, assessment, and student support services) as well as the local commissioner of social services. Additional city and state officials have been invited to participate.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may participate in a variety of extra-judicial activities, including civic activities, that are not incompatible with judicial office and do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A full-time judge may, for example, serve as a non-legal advisor of a civic organization not conducted for profit, if it is unlikely that the organization (a) will be engaged in proceedings that ordinarily would come before the judge or (b) will be engaged regularly in adversary proceedings in any court (see 22 NYCRR 100.4[C][3][a]-[b]). However, a judge must disqualify him/herself from any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee has recognized that the community benefits from having judges take an active part in community affairs whenever possible, including in community efforts to prevent juvenile delinquency (see Opinions 12-74; 99-21 [Vol. XVII]). Thus, the Committee has advised that a judge may, subject to certain limitations, attend a school orientation to explain to students and their families the consequences of continued school absences (see Opinion 11-133); sign a statement of support for a school district’s campaign to promote good school attendance (see Opinion 11-110); serve on advisory boards of law schools and local high schools where the board’s primary function is to deal with student and academic affairs and/or internship and Parent-Teacher Association issues (see Opinions 09-236; 02-63); and serve, subject to certain limitations, on a citizens’ task force to reduce teen violence and crime in the community (see Opinions 99-77 [Vol. XVIII]; 99-21 [Vol. XVII]; 93-108 [Vol. XII]; 90-25 [Vol. V]).

         Thus, under the circumstances presented, the Committee sees no reason to prohibit the judge’s proposed service on an advisory council to help develop community-based solutions to absenteeism issues in a local public school. The Committee notes that the school’s decision-making board, rather than the inquiring judge or even the advisory council, will be making the actual policy decisions for the school board, and also that the judge does not directly preside over cases involving school absenteeism.

         If the school itself, or any member of the advisory council, appears in the judge’s court, the judge must disqualify him/herself, subject to remittal where permitted (see Opinion 09-236; 22 NYCRR 100.3[E][1]; 100.3[F]).¹

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     ¹Remittal is not available if any party is proceeding pro se (see Opinion 11-149). Remittal is a three-step process: First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and is willing to preside. If all three steps are satisfied, the judge may accept remittal of disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding (see Opinion 11-149; relying on 22 NYCRR 100.3[F]).