Opinion 16-105

June 16, 2016

Digest:         A judge subject to article VI, section 20 of the state constitution may not sign a separate oath of office for a county legislature’s law-related advisory board without an opinion from OCA’s Counsel’s Office advising the oath’s execution is legally permissible.

Rules:          NY Const art VI, § 20(b)(1); Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(2)(a); Opinions 15-200; 97-108; 96-65.

Opinion: 

         For some years, a judge subject to article VI, section 20 of the state constitution has served on a law-related advisory board established by a county legislature.¹ Now, for the first time, the county legislature has directed the judge to execute an oath of office in order to continue serving on the board. The oath would require the judge to swear to support the federal and state constitutions, and to “faithfully discharge the duties of ______ Advisory Board in and for the County of _____, according to the best of my abilities.” Because the judge is subject to the constitutional prohibition on holding any other public office or trust, the judge asks if he/she may continue on the board. The judge asks, for example, if service on the board might be deemed “an office in relation to the administration of the courts.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), respect and comply with the law (see 22 NYCRR 100.2[A]), and promote public confidence in the judiciary’s integrity and impartiality (see id.). A judge’s extra-judicial activities must be compatible with judicial office and must not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). Additionally, a full-time judge may not accept appointment to a governmental committee or other governmental position that is concerned with issues of fact or policy in matters other than “the improvement of law, the legal system or the administration of justice” (22 NYCRR 100.4[C][2][a]).

         Under the state constitution, a “judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of a county court, judge of the surrogate’s court, judge of the family court or judge of a court for the city of New York established pursuant to section fifteen of this article” may not “hold any other public office or trust except an office in relation to the administration of the courts, member of a constitutional convention or member of the armed forces of the United States or of the state of New York” (NY Const, art VI, § 20[b][1]).

         While the judge’s service on this advisory board appears otherwise ethically permissible (see 22 NYCRR 100.4[C][2][a]), the judge raises serious concerns about whether executing the proposed oath of office will render his/her service legally impermissible as a prohibited “public office or trust” (NY Const, art VI, § 20[b][1]). The Committee cannot comment on this legal question (see Judiciary Law § 212[2][l]; Opinion 15-200).

         Therefore, in the Committee’s view, the judge may not sign the county legislature’s proposed new, additional oath of office, absent an opinion from the Office of Court Administration’s Counsel’s Office advising that it is legally permissible to do so (see generally Opinions 97-108; 96-65).

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         ¹ The board apparently has a balanced membership reflecting a broad range of interests in a particular area of law.