Opinion 13-07

January 24, 2013

Digest:         A part-time judge may accept appointment as a volunteer member of a legislatively established statewide council which reviews inmate grievances, provided that service on the council is not unduly controversial, but the judge must abstain from participating in the review of any grievance originating from the county in which he/she serves as a judge.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.4(C)(3)(a)(i); 100.5(A)(1); 100.6(B)(1); Joint Opinion 12-181/12-186; Opinions 13-25; 12-139; 11-68; 11-05; 07-46; 06-32; 03-96; 96-123 (Vol. XV); 92-86 (Vol. X); 92-53 (Vol. IX); 90-104 (Vol. VI).

Opinion:

         A part-time judge asks if he/she may accept an appointment to a legislatively established statewide council.¹ The judge says the council reviews inmate grievances from local jail facilities in light of applicable laws and standards; assesses and votes on whether the facility’s response is in compliance; and, if necessary, makes a recommendation about “what the facility has to do to rectify the situation.” The judge states that most grievances involve discrete incidents pertaining to a single individual; however, a grievance may occasionally highlight a systemic problem within the jail, or even call attention to a statewide problem.² Where there appears to be a statewide problem, the council chairperson issues a memorandum for distribution to all jails in the state, advising them of the issue and the council’s recommendation. The inquiring judge says he/she would serve without compensation, and “review[] grievances from inmates across the state, but abstain from voting on any grievance from [the county] where I am currently a judge.”

         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’s extra-judicial activities must not be incompatible with judicial office, and also must not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A part-time judge, unlike a full-time judge, may serve on a governmental committee or commission even if it is concerned with issues of fact or policy in matters other than the improvement of law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][2][a]; 100.6[B][1]). However, neither a part-time nor a full-time judge may serve as an officer, director, trustee or non-legal advisor of an organization if it is likely the organization will be engaged in proceedings that ordinarily would come before the judge (see 22 NYCRR 100.4[C][3][a][i]).

         The Rules Governing Judicial Conduct do not prohibit part-time judges from engaging in extra-judicial activities involving correctional facilities, as long as the judge’s participation does not conflict with the judge’s judicial duties, cast doubt on the judge’s ability to be impartial, or otherwise create an appearance of impropriety (see generally 22 NYCRR 100.3[A]; 100.4[A][1]-[3]). Thus, the Committee has advised that a part-time judge may, subject to certain limitations, serve as a member of a citizens advisory committee which will work with the Department of Corrections in connection with a new correctional facility to be located within the township where the judge serves (see Opinion 90-104 [Vol. VI]), or serve on the board of a facility that houses youths convicted of felonies, where the judge does not make referrals to the facility and has no involvement with its residents (see Opinion 03-96). The Committee has even advised that a part-time judge may accept employment with the Department of Corrections (see Opinion 13-25), or work as a hair stylist or nurse at a county jail (see Opinions 96-123 [Vol. XV]; 92-86 [Vol. X]).

         The Committee has also recognized that part-time judges are afforded somewhat greater latitude in their speech than full-time judges (see Opinion 06-32 [permitting a part-time judge to speak publicly on a “controversial” and “politically charged” subject affecting the judge’s community, where the judge and his/her law firm are known for their expertise on the subject]).

         Nonetheless, even a part-time judge “may not serve on committees that focus on ‘political or controversial issues’” (Opinion 11-68). For example, the Committee has advised that, where lawsuits are reasonably anticipated relating to conditions in the local jails, and jail conditions have been a matter of substantial local controversy, a judge may not serve as a member of a legislatively-created local Corrections Advisory Board tasked with providing suggestions to the local legislative and executive branches for improving the local jails and forwarding complaints about jail conditions to the sheriff’s office for investigation (see Opinion 11-05). The Committee specifically noted that the Corrections Advisory Board:

is involved in fielding complaints regarding the local correctional facilities, aspects of which are likely to come before judges subject to the inquiring judge’s supervision in their judicial capacity. Under these circumstances, serving on that Board would be incompatible with the judges’ judicial duties and would also cast doubt on their independence and impartiality (see Opinion 07-46). Moreover, due to the frequency of litigation over local jail conditions, it appears that the Corrections Advisory Board’s work is likely to become controversial, further rendering participation incompatible with judicial office (see Opinions 05-141; 99-74 [Vol. XVIII]). Thus, the inquiring administrative judge should not permit a judge subject to his/her supervision to serve on the local Corrections Advisory Board.

(Opinion 11-05). A significant distinction from Opinion 11-05 in the present inquiry is that it is highly unlikely that inmate grievances relating to jails located in other counties would ever be litigated in the inquiring judge’s court. Moreover, there is no indication the council itself is likely to be involved in issues or proceedings that would ordinarily come before the inquiring judge’s court (compare Opinions 11-05; 07-46; 22 NYCRR 100.4[C][3][a][i]).

         Therefore, provided that the council’s work does not involve impermissible political activity (see generally 22 NYCRR 100.5[A][1]) and is not so controversial that it is incompatible with judicial office (see Opinions 11-68; 11-05), the inquiring judge may serve on the council. However, to minimize any possible conflict or appearance of impropriety, the judge must abstain from participating in the review of any grievance originating from the county in which he/she serves as a judge.

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     ¹ The enacted statute does not mandate that the council include judges (compare Joint Opinion 12-181/12-186 [domestic violence fatality review team]; Opinions 12-132 [alternatives to incarceration board]; 92-53 [Vol. IX] [same]).

     ² The judge provides examples of a discrete, individual issue (“[t]he jail lost my sneakers”); a systemic problem within the jail (“[t]he jail does not have kosher meals for all who require it”); and a statewide problem (e.g., there are indications that administrators in multiple facilities are unaware of a change in the law).