Opinion 13-38

March 14, 2013

Digest:         A judge may, in his/her capacity as a parent, express his/her concerns about the conduct of his/her child’s public school teacher by (a) signing a petition addressed to the principal, along with other parents; (b) speaking directly with the teacher; and (c) writing to the principal about the teacher, provided the judge does not invoke his/her judicial status in doing so.

Rules:          22 NYCRR 100.2(A); 100.2(C); Opinions 12-169; 12-96; 07-178.

Opinion:

         A full-time judge, concerned about the conduct of his/her minor child’s public school teacher, asks whether he/she may: (a) along with other parents, sign a petition to the principal expressing “grievances” against the teacher; (b) speak with the teacher about such grievances; and (c) write to the principal about the teacher. The judge recognizes that these actions might lead to, or otherwise become part of, an administrative disciplinary proceeding against the teacher, and that any such proceeding may be subject to judicial review (e.g. an Article 78 proceeding). The judge notes he/she would not invoke his/her judicial title in any such communications and would conduct him/herself professionally.

         A judge must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]).

         However, the Committee has advised that “a person elected or appointed to judicial office does not forfeit his/her rights or responsibilities as a parent” (Opinion 07-178; see also Opinion 12-169 [noting “the special nature of the parent-child bond”]). In addition, the Committee has repeatedly recognized that (Opinion 12-96 [citations omitted]):

... the Rules Governing Judicial Conduct do not preclude a judge from exercising the same rights as any other citizen when appearing as a litigant. For example, the Committee has advised that a judge may commence an action in a court of competent jurisdiction, whether proceeding pro se or through counsel. Similarly, the Committee has advised that, when a judge is called as a witness or has been the victim of a crime, the judge generally has the same rights, duties, and obligations as other witnesses or other crime victims.

         In the Committee’s view, these principles permit the inquiring judge to take the same pre-litigation steps to protect or assert his/her personal rights or interests in his/her child’s education and well-being as other similarly situated parents. Accordingly, the inquiring judge, acting as a parent, may express his/her concerns about his/her child’s public school teacher’s conduct by (a) signing a petition addressed to the principal, along with other parents; (b) speaking directly with the teacher; and (c) writing to the principal about the teacher (see e.g. Opinions 12-96; 07-178). Such conduct is not rendered improper if it may lead to, or be included in, an administrative disciplinary proceeding or related litigation. Of course, as the inquiring judge has acknowledged, he/she “must not use or invoke his/her judicial title or status” in doing so (Opinion 12-96; 22 NYCRR 100.2[C]).