Opinion 16-28

March 16, 2016

Digest:         A Family Court judge whose first-degree relative has a part-time entry-level job with an agency where the county department of social services may place a child (1) is disqualified, subject to remittal, from any cases in which the judge’s relative has been personally involved but (2) has no obligation with respect to other cases involving children placed at the same agency. If the judge is satisfied that the agency has an effective procedure in place to insulate the judge’s relative from any cases that may come before the judge, the judge may rely on that insulation and preside in cases involving the agency without any obligation to disclose the employment relationship or inquire about the judge’s relative’s possible involvement in the case.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 15-06; 14-27; 13-132; 13-54; 11-64; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring Family Court Judge’s first-degree relative, an undergraduate social work major, wishes to accept a part-time entry-level job as a Youth Development Professional¹ at an agency serving the judge’s county. The county department of social services may place a child at this agency if the judge determines the child should be placed outside the home. The judge “generally does not address the selection of the agency with whom the [department] places the child, or the location of the child’s placement,” unless a party objects. Instead, the department has the “responsibility and duty ... to provide an appropriate placement based upon the child’s needs and circumstances.” The judge asks if he/she may preside in cases where the department seeks placement of a child, or has already placed a child, at the same agency employing the judge’s relative.

         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]). Thus, a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).²

         The Committee has advised that a town or village justice whose first-degree relative is a social worker without supervisory responsibilities in the local probation department’s domestic violence division (1) is disqualified, subject to remittal where available, from all cases in which his/her relative is personally involved, but (2) need not disclose the familial relationship in other matters involving the probation department and/or allegations of domestic violence, provided his/her relative is not personally involved in the matter (see Opinion 15-06).

         Here, too, the judge’s first-degree relative has no supervisory duties at the agency, and the department, not the judge, selects the agency. The Committee concludes this judge is disqualified, subject to remittal, from any cases where the judge’s relative is personally involved as a Youth Development Professional (cf. Opinion 15-06). The judge has no obligation in other matters involving children placed at the agency, where that relative is not involved.

         If the judge is satisfied the agency has an effective procedure in place to insulate the judge’s relative from any cases that may come before the judge, the judge may rely on that insulation and preside in cases involving the agency without any obligation to disclose that judge’s relative’s employment or inquire about said relative’s possible involvement (see generally Opinions 14-27 [judge may, in his/her discretion, invite a private law firm to create an ethical screen or wall for the judge’s former law clerk who is now an associate of the firm]; 13-132 [judge who “is satisfied that other attorneys at the law firm will be effectively insulated from the judge’s relative’s representation, ... may rely on this representation and need not disqualify him/herself from all matters involving the law firm, when attorneys who are not personally involved in representing the judge’s relative appear before the judge”]; 13-54 [suggesting that “a reasonable procedure designed to avoid conflicts” may “rel[y] on others to inform the judge of the pertinent information”]).

_________________________

         ¹ As a Youth Development Professional, the judge’s relative will have “the greatest amount of contact with residents” of the agency and will use “natural, every day opportunities to teach, guide and support residents with their treatment, goals and challenges.”

         ² There are two objective tests to determine if disqualification is mandatory: The first question is whether any of the specific enumerated statutory grounds for disqualification are present (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law §14). Where, as here, none of those circumstances apply, the second question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under those objective standards, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see Opinion 11-64).