Opinion 12-81

April 26, 2012

Digest:         A quasi-judicial employee who is required to belong to a labor union that represents Unified Court System employees may participate in union activities to the extent permitted by law, the Rules Governing Judicial Conduct and prior Opinions.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(a); 100.5; 100.5(A)(1)(c); 100.6(A); Opinions 11-48; 11-17; 07-198; 06-141; 04-105; 98-32 (Vol. XVI); 97-33 (Vol. XV); 93-07 (Vol. X); 90-126 (Vol. VI); 89-103 (Vol. IV).

Opinion:

         The inquiring quasi-judicial employee states he/she is a member of a court employees’ labor union that is recognized by the Unified Court System as the bargaining unit for a particular civil service position and that he/she is contractually required to pay dues to the union. The inquirer therefore asks whether he/she “can participate in the activities of the union to which we are required to belong.”

         A person who performs judicial functions within the judicial system, such as a support magistrate or other quasi-judicial employee, 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 (see 22 NYCRR 100.6[A]; see also Opinion 11-48). Accordingly, a quasi-judicial employee 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]). Among other things, the provisions of Section 100.5 concerning participation in political activities apply to quasi-judicial employees (see 22 NYCRR 100.5; Opinion 07-198).

         The Committee has advised that “a full-time judge may be active in a union, subject to the appropriate legal restrictions and limitations articulated in the Rules Governing Judicial Conduct” (Opinion 06-141). Thus, judges who are on the faculty of educational institutions may be members of faculty associations, which negotiate salary and other working conditions for their members and otherwise essentially function as unions (see Opinions 11-17; 93-07 [Vol. X]; 89-103 [Vol. IV]). Also, a full-time judge who is a musician may maintain membership in a musician’s union and accept reasonable compensation as a union member for musical performances, as long as the band itself is not a business enterprise and the judge’s involvement is not publicized (see Opinion 06-141).

         Similarly, a quasi-judicial employee may be a member of a court employee’s union, particularly one that is recognized by the Unified Court System as the bargaining unit for a particular civil service position (see generally Opinions 11-17; 06-141; 93-07 [Vol. X]; 89-103 [Vol. IV]).

         The inquiring quasi-judicial employee has not identified specific union activities in which he/she wishes to participate, and therefore the Committee can only provide an overview of the general guidance set forth in prior Opinions. For example, the Committee has advised that a judge “needs to be aware of certain limitations” imposed by the Rules Governing Judicial Conduct, including:

...political involvement. For example, the judge may not participate in the union’s political action committee (PAC). 22 NYCRR 100.5(A)(1)(c); and, indeed, must insulate himself/herself from all political activity, e.g. endorsing candidates, engaging in partisan political activity, and participating in any way in the political campaigns of others. See, e.g. Opinions 98-32; 97-33; 90-126.

(Opinion 04-105). The Committee has also advised that, when participating in union activities, a judge must conduct all of the judge’s extra-judicial activities in such a manner that they do not “cast reasonable doubt on the judge’s capacity to act impartially” (22 NYCRR 100.4[A][1]; see also Opinion 04-105 [judge who serves as president of “a local of a national labor union” should recuse in any court proceedings involving other members of the same union local]); and that a judge must “respect and comply with the law” (22 NYCRR 100.2[A]; see also Opinion 11-17 [judge should not participate in a strike which violates the Taylor Law]).

         Subject to these and other limitations, the Committee has advised that a judge may take a leadership role in a labor union (see Opinions 04-105 [part-time judge may serve as the president of a local of a national labor union and on its civil rights committee, subject to certain limitations]; 98-32 [Vol. XVI] [judge may serve as treasurer of a local Civil Service Employee Association at a neighborhood high school]; 97-33 [Vol. XV] [part-time judge who is also employed in a New York State Health Department cancer facility may serve as an elected steward and union officer at the facility and may discuss job-related issues with high-ranking State officials and members of the State legislature who will vote on legislation affecting the facility and the facility's employees]; 90-126 [Vol. VI] [part-time judge who is a school bus driver may be the president of a school bus drivers’ union, subject to limitations]).

         For issues not covered by these prior Opinions, the inquiring quasi-judicial employee may write to the Committee for further guidance under the specific facts presented.