Opinion 14-66

April 24, 2014

Digest:         A part-time judge who is also a high-level employee of the county government: (1) may allocate funds annually to the probation department’s probation employment program, provided it does not result in the judge’s frequent disqualification; (2) must not personally participate in the solicitation of funds, but may manage other county employees who will engage in such solicitations on behalf of the county office or department for which the judge works; and (3) may meet with elected officials to advocate for maintenance of services to a particular category of individuals, subject to certain limitations.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.4(C)(2)(a); 100.4(C)(3)(b)(I), (iii)-(iv); 100.5(A)(1); 100.6(B)(1); 100.6(B)(4); Opinions 12-91; 12-22; 12-14; 11-70; 11-59; 10-54; 97-64 (Vol. XVI); 95-68 (Vol. XIII).

Opinion:

         The inquiring part-time judge states that he/she is also employed as a full-time, high-level employee of the county government, who serves at the pleasure of the County Executive. The judge asks whether he/she may continue to perform the following job responsibilities now that he/she is a part-time judge:

1. Allocate funds annually to the probation department’s probation employment program, which seeks to provide “a positive work experience” for a certain category of individuals. The judge advises that the employees with whom he/she collaborates regarding the probation employment program do not appear in his/her court.

2. Personally solicit funds from public and private agencies for various goods or supplies to be provided for a certain category of individuals within the county.

3. Meet with elected officials to advocate for maintenance of services to this category of individuals.¹

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). The judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]). A part-time judge, unlike a full-time judge, may accept public employment as long as it is compatible with judicial office and does not interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]) and may accept appointment to a governmental position that concerns issues of fact or policy unrelated to the improvement of the law, the legal system and the administration of justice (see 22 NYCRR 100.4[C][2][a]; 100.6[B][1]). A judge must not lend the prestige of judicial office for fund-raising or membership solicitation or to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]; 100.4[C][3][b][iv]), must not personally participate in the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]),² and must refrain from engaging in political activity except as expressly permitted by the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A][1]).

         The Committee has previously advised that a town judge may not accept a position in his/her local county probation department as an Account Clerk/Typist (see Opinion 95-68 [Vol. XIII]) or office manager (see Opinion 11-59). The Committee explained that, where the probation department serves the same county where the judge’s court is located, “the public could have the perception that the justice might be unduly influenced in the performance of judicial duties by his/her supervisors in the Probation Department or by recommendations made by those supervisors in cases pending before the court” (Opinion 95-68 [Vol. XIII]), and there may be a public perception that the judge may be exposed to ex parte information about cases over which the judge presides (see Opinion 11-59).

         Here, however, the judge is not an employee of the probation department and is not subject to the supervision or control of probation department employees. To the contrary, the judge is in a position to annually allocate money to the probation department. Moreover, the judge states the probation department employees with whom the judge collaborates regarding the probation employment program do not appear in his/her court. In the Committee’s view, the inquiring judge may continue to collaborate with and allocate funds to the county probation department’s probation employment program, provided it does not result in the judge’s frequent disqualification (see 22 NYCRR 100.6[B][4] [extra-judicial employment must not interfere with the proper performance of the judge’s judicial duties]).

         The inquiring judge must not personally participate in the solicitation of goods, services, or funds, and must not permit the use of his/her name or the prestige of judicial office for such purposes (see e.g. Opinions 12-91; 12-22; 12-14; 11-70; 22 NYCRR 100.4[C][3][b][i]). However, the judge may help plan such solicitations (see Opinions 12-91; 12-14; 22 NYCRR 100.4[C][3][b][i]). The judge may also manage other county employees who will engage in such solicitations on behalf of the department for which the judge works (cf. Opinions 12-91 [part-time judge who owns a restaurant may authorize the restaurant to engage in a promotional event that is also a fund-raiser for a not-for-profit organization]; 12-14 [part-time judge may serve as president of a not-for-profit organization that raises funds for athletic programs]; 97-64 [Vol. XVI] part-time judge may serve as president of a local United Way organization]).

         The Committee has previously advised that a part-time lawyer judge may appear before state and local governmental entities on behalf of clients such as trade organizations, private corporations and educational institutions; prepare legal memoranda on issues and legislation affecting those clients; and advocate on his/her clients’ behalf, subject to certain generally applicable limitations (see Opinion 10-54). Thus, for example, the Committee noted that the judge:

may not engage in any partisan political activity []; may not attend political gatherings []; may not make political contributions []; or purchase tickets for politically sponsored dinners or other functions, including any such function for a non-political purpose [].

 ... [In addition,] the judge must ensure that his/her law practice activities do not cast doubt on his/her ability to be impartial as a judge, do not detract from the dignity of judicial office, do not interfere with the proper performance of his/her judicial duties and are not incompatible with judicial office []. Also, the judge must not lend the prestige of judicial office to advance his/her private interests or those of his/her clients or law firm []. Moreover, the judge must refrain from making any public comment about a pending or impending proceeding in any court within the United States or its territories. . . .

(id. [citations omitted]). Here, too, the inquiring part-time judge may meet with elected officials to advocate for maintenance of services to a particular category of individuals, subject to the same limitations (see Opinion 10-54).

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     ¹ The judge’s argument, as described in the inquiry, is primarily a fiscal one based on a cost-benefit analysis.

     ² Nonetheless, a judge may assist an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice in planning fund-raising (see 22 NYCRR 100.4[C][3][b][i]) and may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system, or the administration of justice (see 22 NYCRR 100.4[C][3][b][iii]).