Opinion 17-103

September 11, 2017

Dear :

         This responds to your inquiry (17-103) in which you ask whether you may concurrently serve as a part-time City Court judge and a full-time Executive Director of a not-for-profit alcohol treatment program and other related questions. The treatment program employs counselors and therapists who work directly with students in the school system, some of whom might appear as defendants in your court. In both capacities, you would work with the Department of Probation, which has the power to make referrals to the treatment program.

The Rules Governing Judicial Conduct permit a judge to serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for profit, subject to certain limitations (see 22 NYCRR 100.4[C][3]). The Committee has previously advised that “the community benefits from having judges take an active part in community affairs wherever possible” (Opinion 90-25). However, a judge may not participate in civic activities which reflect adversely upon the impartiality of the judiciary or which interfere with the performance of judicial duties (see 22 NYCRR 100.2; 100.2[A]; 100.4[A][1]-[3]). Toward that end, we have advised that “an appearance of impropriety would be created necessarily, if a [part-time] justice referred defendants to a clinic operated by a foundation that employed the justice as executive director” (Opinion 89-109). Similarly, we have also advised that where, as here, a judge makes an indirect referral, it would “create[] a conflict or at least the appearance of a potential conflict between the judge’s performance of his/her judicial duties and his/her [extra-judicial] role” (Opinion 11-44, quoting Opinion 02-91).

In light of the fact that you are ethically prohibited from simultaneously serving as a part-time justice and executive director of a not-for-profit agency, given the power of the probation department to make referrals, the Committee does not address your remaining questions regarding other ethical implications of such dual employment.

Enclosed, for your convenience, are Opinions 17-102; 07-110; 07-02; 11-44 and 02-91 which address this issue.

Very truly yours,

                             George D. Marlow, Assoc. Justice

                              Appellate Div., First Dep’t (Ret.)

                             Committee Co-Chair

                             Hon. Margaret T. Walsh

                             Family Court Judge

                             Acting Justice, Supreme Court

                             Committee Co-Chair

Encls.