Opinion 12-163

October 25, 2012

Digest:         A support magistrate whose spouse is employed by the local Department of Social Services in a high level, purely administrative capacity may continue to preside over matters in which the Department of Social Services appears, where the Commissioner has provided written assurance that the support magistrate’s spouse will be completely insulated from Family Court matters.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(E)(1); 100.3(F); 100.6(A); Opinions 11-48; 11-47; 10-112; 00-59 (Vol. XIX); 99-173 (Vol. XVIII); 98-138 (Vol. XVII); 98-27 (Vol. XVI).

Opinion:

         The inquiring support magistrate who presides in paternity and child support cases states that his/her spouse has been appointed as deputy commissioner of administration for the local Department of Social Services (local DSS). In that capacity, the support magistrate’s spouse will manage personnel, assist with budget preparations, and perform human resources functions (including employment interviews, performance evaluations, and grievances). The local DSS Commissioner (Commissioner) has stated in writing that the support magistrate’s spouse will not supervise or manage the child support collection unit or the legal department which appears in Family Court; those departments will report directly to the Commissioner. The support magistrate asks whether any further steps must be taken to avoid any appearance of impropriety or conflict when the local DSS appears before the support magistrate.

         A person who performs judicial functions within the judicial system, such as a support magistrate, must comply with the Rules Governing Judicial Conduct in the performance of his/her judicial functions and otherwise must “so far as practical and appropriate use such rules as guides” to his/her conduct (22 NYCRR 100.6[A]; see Opinion 11-48). Thus, a support magistrate must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). To that end, a support magistrate must not allow family or other relationships to influence his/her judicial conduct or judgment (see 22 NYCRR 100.2[B]), must not allow others to convey the impression that they are in a special position to influence him/her (see 22 NYCRR 100.2[C]), and is prohibited from presiding in a proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]; but see 22 NYCRR 100.3[F]).

         The Committee has previously considered the effect of a judge’s spouse’s public sector employment, in an administrative capacity, on the judge’s ability to preside when the spouse’s employer appears in the judge’s court. See, e.g., Opinions 10-112; 00-59 [Vol. XIX]; 98-138 [Vol. XVII]; 98-27 [Vol. XVI].

          Where a judge’s spouse is a law enforcement officer whose duties are primarily administrative, the Committee has advised that neither disclosure nor disqualification is required when officers from the same department appear before the judge as long as the spouse is not personally involved in the matter, does not supervise the officers, and does not have a “high profile” within the department (see Opinion 98-27 [Vol. XVI]; cf. Opinion 99-173 [Vol. XVIII] [judge in personal relationship with police sergeant employed in same municipality where court is located]. See generally Opinion 11-47 [discussing prior opinions and noting that non-supervisory law enforcement personnel typically have no cognizable financial or other interest in the prosecution of criminal cases as long as they are not personally involved in the matter]).¹

         The Committee has also considered the recusal obligations of a problem solving court judge whose spouse is employed as an “administrator” of a not-for-profit service provider to which defendants appearing in the judge’s court may be referred (see Opinion 10-112). In Opinion 10-112, the judge’s spouse was responsible for “overseeing the operations of” the organization, but neither worked directly with clients nor supervised anyone who did, and the judge did not refer defendants to any specific service provider (id.). The Committee concluded the judge must disqualify him/herself only from those proceedings involving a defendant referred to his/her spouse’s employer, who has been “returned to court for non-compliance with his/her treatment program” (id.).

         However, the facts in the present inquiry find their closest analog in opinions involving government entities (see, e.g., Opinions 99-173, 98-138, 98-27). The inquiring support magistrate’s spouse’s employer has made a specific written commitment that the inquirer’s spouse will be completely insulated from Family Court matters. The Commissioner has stated in writing that the support magistrate’s spouse will not supervise or manage the child support collection unit or the legal department which appears in Family Court and that those departments will instead report directly to the Commissioner.

         The Committee concludes that, under these circumstances, the support magistrate may preside over matters in which the local DSS appears, without disclosing his/her spouse’s employment. See Opinion 99-173.

         Nevertheless, should the support magistrate’s spouse’s duties change, the support magistrate should consider seeking further guidance from the Committee.

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     ¹ Of course, a judge may not preside in matters in which the judge’s spouse is or has been personally involved, even at the level of “providing advice, screening of cases, etc.” (Opinion 00-59 [Vol. XIX] [judge’s spouse an attorney with the County Attorney’s office]), and a judge must disqualify, subject to remittal, in matters in which individuals supervised by the judge’s spouse are personally involved (see Opinion 98-138 [Vol. XVII] [judge’s spouse supervises caseworkers from the local Department of Family Services]).