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Opinion 16-157

December 8, 2016

Please Note: This opinion has been overruled or modified by Joint Opinion 17-163/18-03/18-21, to the extent it prohibits a full-time judge from participating in a commercially produced documentary without compensation.

Digest: A full-time judge (1) may informally refer at-risk youth to religious or secular educational programs, assuming he/she does not frequently preside in matters involving at-risk youth and such programs do not appear before the judge or accept court referrals; (2) may serve as a paramedic with a local volunteer ambulance corps; (3) may not serve on the board of a regional emergency medical services council; and (4) may participate in a documentary film concerning his/her volunteer activities if it is produced by a not-for-profit entity, but may not participate in a commercially produced documentary.

Rules: Public Health Law §§ 3003; 3008; 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(B); 100.4(C)(2)(a); 100.4(D)(3); Opinions 16-37; 14-77; 13-158; 13-13; 10-206; 09-182; 09-79; 08-124; 01-86; 98-141.

Opinion:

A new full-time judge asks if he/she may continue to engage in several volunteer activities.

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]). Although “[a] judge may speak, write, lecture, teach and participate in extra-judicial activities” (22 NYCRR 100.4[B]), such extra-judicial activities must not interfere with his/her judicial office and must not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). Moreover, a judge must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]), or permit anyone to convey the impression that they are in a special position to influence the judge (see id.). A full-time judge may “not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][2][a]) and must not serve as an “active participant of any business entity,” unless an exception applies (22 NYCRR 100.4[D][3]).

1. Referring At-Risk Youth to Religious or Secular Educational Programs

The judge asks if he/she may continue to volunteer with a referral service for at-risk youth in a particular faith community, which refers such youth to a program to study religious texts and/or connects them with a GED program at a local not-for-profit private two-year college, as needed. Parents, teachers, and teens reach out to the judge for help with “adolescents who are not succeeding in school or are not in school and on the streets.” The judge’s current role is strictly “referring people to the proper program and occasionally meeting with the children in an effort to encourage them to go back to school.” The judge notes that this role is not a formal one, such as a director. Rather, the role consists of referring interested members of the community to the proper program. There are no court referrals involved.

In Opinion 13-13 (citations omitted), the Committee stated:

[T]he community benefits from having judges take an active part in community affairs whenever possible, including in community efforts to prevent juvenile delinquency. Thus, ... a judge may, subject to certain limitations, ... attend a school orientation to explain to students and their families the consequences of continued school absences; sign a statement of support for a school district's campaign to promote good school attendance; [and] participate in a panel discussion about preventing and reducing underage drinking, where the program is educational in nature and is unlikely to be perceived as a law enforcement program....

Of course, a judge must not participate in community efforts to prevent or address truancy or delinquency issues, no matter how laudable, if the judge’s participation would conflict with the judge’s judicial duties, cast doubt on the judge’s ability to be impartial, or otherwise cause the judge to violate the Rules Governing Judicial Conduct.

At this time, the Committee sees no ethical conflict, provided the judge is not participating in fund-raising or lending the prestige of judicial office to private interests. However, the Committee notes the potential for conflict if the judge frequently presides in matters involving at-risk youth, such as in Criminal Court or Family Court. In that case, the judge should seek additional guidance from the Committee, as informally referring at-risk youth to other programs may be incompatible with the judge’s official duties, particularly if such programs may appear before the judge or accept court referrals.

2. Volunteering as Paramedic with a Volunteer Ambulance Corps

The judge, who is a trained paramedic, asks if he/she may serve in a volunteer ambulance corps.

The Committee believes a full-time judge may volunteer as a paramedic with a local volunteer ambulance corps, subject to generally applicable limitations on judicial speech and conduct (see Opinion 08-124 [discussing possible disqualification issues without questioning the propriety of the judge’s service as an EMT]; cf. Opinion 14-77 [judge may volunteer for a not-for-profit organization devoted to honoring fallen police officers, firefighters, and emergency medical personnel, where the judge’s work will relate only to firefighters and medical personnel, and not to police officers]).

3. Serving on the Board of a Regional Emergency Medical Services Council

The judge asks if he/she may serve on the board of a regional emergency medical services council. The regional council’s members are initially appointed by the Commissioner of Public Health (PHL § 3003). Among other functions, a regional council coordinates emergency medical services programs within its region, and makes determinations of public need relating to the proper level of emergency medical services and ambulance services (see PHL §§ 3003; 3008).

In the Committee’s view, a full-time judge may not serve on a regional emergency medical services council, as it is “a governmental position that is concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][2][a]). While we recognize that some individual regional councils may be structured as not-for-profit entities, the policy and decision making authority under the Public Health Law renders the position incompatible with service as a full-time judge.

4. Participating in Documentary Films

The judge asks if he/she may participate in two documentary films in connection with the judge’s volunteer work. The first one, which was already under contract before the judge assumed judicial office, should be completed within the next few years and will eventually air on PBS. The second film is at a far more preliminary conceptual stage; National Geographic approached the inquirer with an idea for filming a segment that would include the judge and other volunteers as part of a much larger documentary.

With respect to the first film, given that a contract was signed years ago, and especially to the extent footage has already been filmed, the Committee sees no ethical dilemma. However, after assuming judicial office, the judge must abide by the Rules Governing Judicial Conduct in any future involvement. And of course, the judge’s participation in the possible second film project will be subject to the Rules from its inception.

Because a full-time judge must not serve as an “active participant of any business entity” (22 NYCRR 100.4[D][3]), a key question is whether the documentary film is produced by a not-for-profit entity or a commercial one (see generally Opinion 13-158 [discussing prior opinions]). The Committee has advised that a full-time judge must not participate in the making of a video produced by a for-profit organization (see e.g. Opinions 01-86 [educational video about the judicial branch of government]; 09-182 [videotaped interview in connection with a criminal justice textbook]). Thus, for example, a full-time judge “may not participate in a commercial television show by being interviewed on camera, hosting the show, or serving as a paid or unpaid consultant” (Opinion 16-37).

By contrast, a judge may appear in a documentary film produced by a not-for-profit organization, subject to generally applicable limitations on judicial speech and conduct (see e.g. Opinions 10-206; 09-79; 98-141). For example, judges must comply with “the public comment rule and the rule against ex parte communications, ... and their participation must not detract from the dignity of judicial office or cast reasonable doubt on their capacity to act impartially” (Opinion 13-158 [citations omitted]).

The judge should abide by these restrictions with respect to any further participation in the contracted-for film and in deciding whether and how to participate in the possible National Geographic project. Of course, the judge may also ask for more detailed guidance from the Committee as specific circumstances arise.