Opinion 14-106

September 4, 2014

Digest:         An administrative judge who is required to transmit the name of an individual recommended for a particular appointment to the appointing authority, but has ethical or administrative concerns about the suitability of the appointment, should advise the appointing authority of his/her concerns when transmitting the individual’s name.

Rules:          22 NYCRR 8; 100.2; 100.2(A); 100.2(B); 100.3(C)(1); 100.3(C)(3).

Opinion:

         An administrative judge asks about his/her ethical obligations with respect to the application of the parent, spouse, or child of a sitting judge for appointment to a high-level position where the applicant would “work[] directly with” and “take[] direction from” certain judges subject to the inquirer’s supervision, including the applicant’s judicial relative.¹ The inquiring judge is concerned that if this particular applicant is appointed, the familial relationship could result in “negative operational consequences” and “an appearance of impropriety.” The judge explains that voting members of a particular board will make the initial recommendation for the appointment, and thereafter, the administrative judge must “submit the name of the individual for appointment” to the appointing authority. Because a majority of the members of the board are judges subject to the inquiring judge’s supervision, the judge states that he/she is also “very uncomfortable” that the judicial members of the board have been placed in a position where they must vote for or against an applicant who is a colleague’s relative. The judge asks for advice about his/her ethical obligations under these circumstances.

         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 must “respect and comply” with the law (id.), and must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). Moreover, a judge must maintain professional competence in judicial administration (see 22 NYCRR 100.3[C][1]) and must exercise the power of appointment impartially and on the basis of merit, avoiding nepotism and favoritism (see 22 NYCRR 100.3[C][3]).

         The Committee notes that it is not yet known which applicant will be recommended for the position in question. If the inquiring judge has concerns about the suitability of the individual ultimately recommended for the appointment – including, but not limited to, the specific ethical and administrative concerns the judge has outlined in the present inquiry - the judge should advise the appointing authority of his/her concerns when complying with his/her obligation to transmit the name of the individual the board has recommended.

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     ¹ Under the specific circumstances presented, the Committee assumes, without deciding, that Rule 8 of the Rules of the Chief Judge relating to the appointment of judges’ relatives does not prohibit the appointment (see 22 NYCRR 8; 100.3[C][3]).