Opinion 13-166/13-166(A)
December 12, 2013
Digest: (1) A judge may serve on a special act school district’s board of education, where the district is not a taxing authority, its budget is not subject to public referendum, its members are not subject to public election, and the judge’s court does not make referrals to the district’s facilities. (2) A judge may serve on the board of trustees of a not-for-profit entity which is the parent organization of a residential treatment center whose child residents attend a special school district, provided that the judge’s court makes no referrals to the organization.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(C)(3)(a)(I)-(ii); 100.4(C)(3)(b)(I)-(iv); 100.5(B); Opinions 11-44; 09-90; Joint Opinion 97-104/97-105 (Vol. XVI); Opinions 96-43 (Vol. XIV); 94-59 (Vol. XII); 90-79 (Vol. VI); 90-63 (Vol. V); Joint Opinion 89-157/90-07 (Vol. V).
Opinion:
In Inquiry 13-166, a full-time judge1 asks whether he/she may serve on the board of education for a special act school district. According to the judge, the special act school districts “are considered public schools,” and are created “for the purpose of providing education services to students who reside in child care institutions.” Apparently, the school district is not a taxing authority. Rather, it receives “most of [its] revenue through student tuition payments,” supplemented by federal and state aid for specific purposes, and its “budgets are not subject to a vote of the public.” Similarly, all board members are appointed either by the trustees of a not-for-profit agency or by the commissioner of education; they are not subject to public election. Moreover, the inquiry makes clear that, although children may be placed in the school district’s facilities as part of family court proceedings, the judge’s court does not refer children for placement in such facilities. Finally, the judge states that board members are unpaid and have no fund-raising responsibilities.
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 be compatible with judicial office and must 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]). Generally, a judge may be a member or serve as an officer, director, trustee or non-legal advisor of a not-for-profit educational organization (see 22 NYCRR 100.4[C][3]), unless the organization will be engaged in proceedings that ordinarily would come before the judge or, if the judge is full-time, will be engaged regularly in adversary proceedings in any court (see 22 NYCRR 100.4[C][3][a][I]-[ii]).
The Committee has frequently advised that membership on a public school board or the board of directors of a public charter school can be incompatible with judicial office (see Opinions 11-44; 96-43 [Vol. XIV]; 90-63 [Vol. V]; Joint Opinion 89-157/90-07 [Vol. V]). For example, the Committee found the positions incompatible if board members were required to stand for public election (see Opinions 09-90; 90-63 [Vol. V]; cf. 22 NYCRR 100.5[B] [judge must resign from judicial office upon becoming a candidate for elective non-judicial office either in a primary or in a general election]). The positions are also incompatible if the judge’s court is empowered to refer children to the school district’s programs (see Opinion 11-44; cf. 22 NYCRR 100.4[A][3]; 100.4[C][3][a][I]). Similarly, a school board may be called upon to make potentially controversial decisions affecting the community, particularly when the board is a component of local governments and a taxing authority (see Opinions 96-43 [Vol. XIV] [“functions of school boards are essential components of local government. Its proceedings are frequently controversial especially where related to budgets and school taxes. As a member of the board the judge could be engulfed in controversy which would interfere with his/her judicial duties”]; 90-79 [Vol. VI] [“Local school boards, both in urban and rural areas, are subjects of wide-spread community interest. One of their principal functions is approval of budgets and fixation of school taxes, which are subject to controversy. School board members may be at the center of such controversies and the object of public criticism.”]; 11-44 [“The Committee sees no reason to distinguish between service on a public school board and a public charter school board as the latter organizations from time to time also generate quasi-political and highly controversial issues that could interfere with a judge’s judicial duties and compromise his/her appearance of impartiality.”]; cf. 22 NYCRR 100.4[A][1]). Thus, in each of those instances, the Committee advised that membership on a public school board could compromise a judge’s appearance of impartiality or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1], [3]).
In the unusual circumstances where these factors are not present, however, the Committee has previously advised that a judge may serve on a school board. For example, a part-time judge may serve on the board of a parochial (non-public) school, where he/she is elected by the parishioners rather than by the community at large (see Joint Opinion 97-104/97-105 [Vol. XVI]). Moreover, the Committee has also advised that a part-time judge may accept appointment to the board of trustees of a publicly-funded school district for handicapped children where there is no public vote of the district’s budget and the board member does not stand for public election (see Opinion 94-59 [Vol. XII]). Of particular note, the trustees for the school district at issue in that opinion were “elected by a not-for-profit corporation associated with the school district” (id.).
Here, the school district’s board members are not publicly elected, and the district’s budget is not subject to public vote. Moreover, the school district was created to provide education services to certain students who reside in child care institutions, and although family court may place children in the district’s facilities, the judge’s court does not. Thus, under the instant circumstances, the Committee concludes the Rules Governing Judicial Conduct do not prohibit this judge from sitting on the board of election of this special act school district (see Opinion 94-59 [Vol. XII]).
In a supplemental Inquiry 13-166(A), the judge asks whether he/she may serve on the board of trustees of a not-for-profit entity which is the parent organization of the residential treatment center when children who are residents of the center attend the special school district referenced in Inquiry 13-166. For the reasons previously discussed, the Committee concludes that this is also permissible, provided that the judge’s court makes no referrals to the organization (see generally Opinion 94-59 [Vol. XII]; 22 NYCRR 100.4[C][3][a][I]).
In serving on these boards, the judge must, of course, abide by all applicable ethical restrictions, including the limitations on a judge’s involvement in fund-raising activities (see 22 NYCRR 100.4[C][3][b][I]-[iv]).
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1 The inquirer expects to take the oath of office shortly and is asking about his/her obligations thereafter.