Opinion 14-129(A)

September 4, 2014

Digest:         A Judicial Hearing Officer may serve as a hearing officer for the New York State Joint Commission on Public Ethics, provided such service is legally permissible.

Rules:          Executive Law § 94; Legislative Law § 80; 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(F)-(G); 100.6(A); 100.6(B)(1); 122.10(a)-(d); Opinions 11-15; 09-230; 08-201; 07-215; 07-13; 06-84; 00-14 (Vol. XVIII); 98-41 (Vol. XVI); 89-40 (Vol. III); 88-148 (Vol. III).

Opinion:

         The inquiring Judicial Hearing Officer (JHO) asks whether he/she may serve as a hearing officer for the New York State Joint Commission on Public Ethics (JCOPE) (see generally Executive Law § 94; Legislative Law § 80). The JHO explains that JCOPE’s “mandate is to enforce ethics laws and the Public Officers Law.”

         As a quasi-judicial official, a JHO must comply with the Rules Governing Judicial Conduct in the performance of his/her judicial functions within the judicial system, and must otherwise “so far as practical and appropriate” use the Rules as guides to his/her conduct (22 NYCRR 100.6[A]; see also Opinion 11-15 [noting that “the Committee generally has applied opinions about the conduct of part-time judges to similar conduct by JHOs”]). Therefore, a JHO 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 JHO must not engage in extra-judicial activities that cast reasonable doubt on his/her ability to act impartially as a JHO; detract from the dignity of judicial office; interfere with the proper performance of his/her duties as a JHO; or are incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). Although a full-time judge generally must not act as an arbitrator or mediator or otherwise perform judicial functions “in a private capacity” (22 NYCRR 100.4[F]) and must not practice law (see 22 NYCRR 100.4[G]), these limitations do not apply to a part-time judge or JHO (see 22 NYCRR 100.6[B][1]; Opinions 09-230; 08-201). Indeed, a JHO may practice law, subject to the limitations set forth in 22 NYCRR Part 122 (see 22 NYCRR 122.10[a]-[d]).

         It is not inherently unethical for a part-time judge or JHO to serve as a hearing officer for an entity independent of the court system (see e.g. Opinions 08-201 [JHO may serve as a compensated arbitrator and/or mediator for a private firm, subject to certain limitations]; 88-148 [Vol. III] [town justice may serve as a hearing officer for the county health department, subject to certain limitations]). Thus, for example, the Committee has previously advised that a JHO may serve as hearing officer for a municipality’s disciplinary hearing involving a police officer if the JHO is not on the JHO panel for the municipality’s court and does not preside in criminal or other police related matters (see Opinion 11-15); a part-time town justice may accept a position as a hearing officer for the local City Housing Authority, provided the position is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s judicial duties (see Opinion 07-215); and a town justice may preside as an arbitrator/hearing officer in a disciplinary hearing against a village police officer of a village located outside the town in which the justice presides (see Opinion 98-41 [Vol. XVI]).

         Under the circumstances presented, the Committee can see no ethical incompatibility or conflict with the inquiring JHO’s proposed service as a JCOPE hearing officer. Although the inquiring JHO’s proposed extra-judicial employment as a hearing officer for an entity whose “mandate is to enforce ethics laws and the Public Officers Law” may, at times, result in highly publicized and even controversial decisions concerning the ethical propriety of another public official’s conduct, the Committee believes this does not, in and of itself, create an appearance of impropriety. After all, the Committee has repeatedly advised that a JHO or part-time judge may, as an extra-judicial activity, preside in a disciplinary hearing concerning a public official (see Opinions 11-15 [JHO may serve as hearing officer for a municipality’s disciplinary hearing involving a police officer if the JHO is not on the JHO panel for the municipality’s court and does not preside in criminal or other police related matters]; 00-14 [Vol. XVIII] [part-time town justice may accept appointment to serve as hearing officer in a disciplinary proceeding involving a firefighter]; 98-41 [Vol. XVI] [part-time town justice may preside as a hearing officer in a disciplinary hearing against a village police officer of a village located outside the town where the justice presides]; 89-40 [Vol. III] [town justice may serve as a hearing officer in a disciplinary proceeding brought by a county against a county employee pursuant to section 75 of the Civil Service Law]). Indeed, the inquiring JHO’s proposed service as a JCOPE hearing officer is more similar to presiding over a disciplinary proceeding than to resolving a dispute between two actual or potential litigants, which can create an “evident appearance of impropriety or risk of conflict” (Opinion 07-13) if a JHO were to serve as a mediator or arbitrator in connection with a case that is pending in a court in which the JHO has been designated to serve (compare Opinion 06-84 with Opinion 07-13).

         Accordingly, the Committee concludes that the inquiring JHO may serve as a hearing officer for JCOPE, provided such service is legally permissible.