Opinion 16-91

June 16, 2016

Digest:         (1) A town justice may ask local not-for-profit organizations if they are willing to accept court placement of defendants to serve community service sentences, and thereafter provide their contact information to the alternatives to incarceration program’s administrator. (2) The judge may continue to participate in activities organized by such organizations, provided he/she takes certain steps to minimize any appearance of impropriety.

Rules:          Criminal Procedure Law §§ 170.55(6), 390.30(6); Penal Law § 65.10(2)(h); 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(B)(1); 100.3(B)(6)-(7); 100.4(A)(1)-(3); 100.4(C)(3); 100.6(A); Opinions 15-161; 15-47; 15-39; 13-42; 12-20; 11-153; 09-151; 04-101; 99-64.

Opinion:

         A town justice attended a presentation regarding alternatives to incarceration, including the possibility of sentencing defendants to community service with authorized entities.¹ The judge learned there are no such authorized entities within the judge’s township. The judge asks if he/she may approach local not-for-profit organizations to see if they would consider participating in the alternatives to incarceration program. If so, the judge further asks if he/she may forward interested organizations’ contact information to the probation department that administers the program.

         The judge notes that some organizations he/she would like to contact are ones that “either I and/or immediate family members” are involved with, such as his/her house of worship or a local not-for-profit children’s sports team in which one or more family members already participate as “coach/player.” The judge asks, in effect, if he/she and his/her family may continue participating in such activities if defendants may also participate in them as part of a community service sentence.

         A judge must always avoid even the appearance of impropriety in all of the judge’s activities (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 judge must be faithful to the law (see 22 NYCRR 100.3[B][1]) and dispose of all judicial matters promptly, efficiently and fairly (see 22 NYCRR 100.3[B][7]). A judge also must not “initiate, permit, or consider” impermissible ex parte communications (see 22 NYCRR 100.3[B][6]). Also, since a judge’s “judicial duties ... take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), a judge’s extra-judicial activities must not be incompatible with judicial office nor: (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]).

         The Committee has advised that justice courts may advertise for local not-for-profit organizations willing to accept court placements of defendants to serve community service sentences (see Opinion 13-42):

Given that judges may lawfully impose community service obligations under specified circumstances to the extent authorized by law (e.g., Criminal Procedure Law §§ 170.55[6], 390.30[6]; Penal Law § 65.10[2]), the Committee does not see any appearance of impropriety were a court to invite all local not-for-profit organizations to express their interest in accepting such placements, provided the advertisement does not reasonably create an impression that defendants will be placed with organizations that are not eligible to accept such placements.

Accordingly, the Committee concludes this judge may likewise ask local not-for-profit organizations to consider participating in the alternatives to incarceration program, provided he/she does not give the impression the defendants will be placed with entities not eligible to accept such placements. The judge may also forward their contact information to the probation department. Significantly, the judge is merely informing the probation department of entities that may wish to participate in the alternatives to incarceration program; he/she has no role in deciding if the entity meets the programs’ acceptance criteria.

         As for the judge’s final question, a judge may generally “participate in any not-for-profit educational, religious, charitable, cultural, fraternal or civic organization,” subject to certain limitations (Opinion 09-151; see 22 NYCRR 100.4[C][3]). For example, a judge may not serve on the board of directors of a non-profit organization if he/she sentences defendants to community service there as an alternative to incarceration (see Opinion 99-64). A judge also must not deliberately attend or participate with the defendant in the community service project (cf. Opinion 15-47 [judge may not “deliberately attend and participate in an exercise program together with treatment court participants”]), or volunteer, even briefly, to drive defendants to perform their community service (see Opinion 11-153).

         The same principles apply here (see id.). However, because this judge does not control or direct where a defendant will be assigned to perform community service, it is possible the judge may, while engaging in otherwise permissible community activities, learn that a defendant is also participating in the same activity as part of the alternatives to incarceration program. This does not, in and of itself, create any appearance of impropriety. However, the judge must make every reasonable effort to minimize contacts with defendants he/she has sentenced to community service. This will, among other things, help the judge avoid exposure to ex parte communications that “may cast doubt on the judge’s capacity to act impartially as a judge in matters pending or which may come before the judge” (Opinion 15-47), and minimize the risk of any possible appearance of impropriety (see 22 NYCRR 100.2).

         With regard to the judge’s relatives, the Committee has previously advised that the Rules Governing Judicial Conduct do not apply to a judge’s spouse or other relatives (see e.g. Opinions 15-161; 12-20; 22 NYCRR 100.6[A]). As nothing in the inquiry suggests the judge’s immediate family members will be running or directly supervising any community service program that may receive defendants sentenced by the judge (cf. Opinions 15-39; 04-101),² their own community activities do not appear to present any judicial ethics issue for the judge.

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         ¹ The Committee understands a judge typically sentences a defendant to a certain number of hours of community service; the probation department or its designee then assigns the defendant to a particular community service project for an approved public or not-for-profit corporation, association, institution or agency.

         ² If this changes, the judge may contact the Committee for further guidance (cf. Opinions 15-39; 04-101).