Opinion 12-18

January 26, 2012

Digest:         A Family Court judge may not, as an extra-judicial activity, request Department of Social Services case files for truant children; meet with agency caseworkers, educators, attorneys, and parents to advise them about specific rights and services that may be available to these children under the Education Law; and collaborate with them on ways to improve the children's school attendance.

Rules:          Family Court Act art 10-A; 22 NYCRR 100.1; 100.2;100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.4(F), (G); 205.17; Opinions 08-145; 07-42.

Opinion:

         A Family Court judge asks if he/she may, as an extra-judicial activity, collaborate with a school district and the Department of Social Services (DSS) to "improve the education" of children who are in foster care or subject to DSS supervision. The judge would ask DSS to provide case files for ten children "who haven't been attending school," and would then work with stakeholders, such as DSS representatives, local educators, attorneys, and parents from the school district, to improve these ten children's attendance. The judge would hold informational meetings for DSS case workers and other stakeholders regarding New York State Education Law, with an emphasis on the rights and available services for special needs children. The judge and meeting participants would discuss the selected DSS cases and make specific recommendations for each child. The inquiring judge says he/she will not preside in any of the selected cases. If successful, the judge proposes to expand the program to neighboring school districts.

         A judge must always avoid even the appearance of impropriety (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]). A judge may engage in extra-judicial activities, provided that doing so does 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 and is not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). A full-time judge also must not practice law (see 22 NYCRR 100.4[G]) or act as a mediator in a private capacity (see 22 NYCRR 100.4[F]).

         The Committee initially notes that the DSS case files the judge is to review as part of this proposed program may relate to matters pending before various Family Court judges or that may come before them.¹ Indeed, the inquiring judge has acknowledged as much, by saying he/she will not preside in these cases.

         In the Committee's view, the proposed program is impermissible for three reasons. First, a judge may not engage in extra-judicial activities that interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][3]) and, therefore, should not participate in a program which will, as contemplated, require frequent disqualification (see 22 NYCRR 100.3[A] [the judicial duties of a judge take precedence over all the judge's other activities]; cf. Opinion 08-145 [noting that a judge may not maintain dual employment in judge and non-judge positions "if the disqualifications bec[o]me too frequent"]).

         Second, the judge proposes to intervene unilaterally in matters that are properly before other judges or that may properly come before other judges and advise numerous stakeholders (including educators and parents) about the legal rights of specific children in foster care. This would impermissibly interfere with other judges' proper performance of judicial duties (cf. 22 NYCRR 100.4[A][3]) and would, at the very least, create an appearance of impropriety, including, potentially, an appearance that the inquiring full-time judge is providing legal advice in connection with a pending matter (see 22 NYCRR 100.1; 100.2; 100.4[G]).

         Third, the judge's proposed role appears to be that of a mediator, as the judge would invite discussion of specific cases and make specific recommendations in each case about how to improve school attendance. A full-time judge may not serve as a mediator, and, therefore, the proposed program is impermissible {see Opinion 07-42; 22 NYCRR 100.4[F]).

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     ¹For example, in New York, placement of a child in foster care does not

terminate judicial proceedings relating to the child; to the contrary, permanency

hearings must be held periodically {see Family Court Act art 10-A; 22 NYCRR 205.17).