Opinion 17-159

December 7, 2017

Digest:       Under these circumstances, a town justice may respond to the town’s fraud risk questionnaire about the financial and anti-fraud controls in the town court.

Rules:        Judiciary Law § 255-b; Uniform Justice Court Act § 2019-a; 22 NYCRR 100.1; 100.2; 100.2(A); 100.3(D)(1)-(2); Opinions 17-73; 16-104; 15-215; 15-189; 14-140; 08-99; 07-185/08-68/08-77.

Opinion:

         Two town justices ask if they may complete a “fraud risk inquiries form” from the town’s financial administrator. The form’s questions cover topics such as whether the justices know or suspect fraud in court operations, know of improper financial reporting or have knowledge of non-compliance with audit requirements. The form also asks about justice court procedures, the education of court employees on ethical issues and business practices, and whether the court has complied with known laws and regulations. According to the financial administrator, the “fraud questionnaire” follows an “agreed upon procedure audit for the Justice Court.” The administrator asks the justices to fill out and sign the questionnaire “for the annual Justice Court audit.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must uphold public confidence in the judiciary’s integrity, impartiality, and independence (see 22 NYCRR 100.1; 100.2[A]). Thus, for example, if a judge receives information indicating a “substantial likelihood” that a lawyer or another judge has committed a “substantial violation” of the applicable rules of professional ethics, the judge must take “appropriate action” (22 NYCRR 100.3[D][1]-[2]).

         Although some municipal initiatives may infringe on judicial independence (see e.g. Opinions 17-73; 16-104), producing statutorily permissible information to the town board to facilitate court operations is unlikely to compromise the judiciary’s actual or apparent independence and impartiality. In fact, providing such access is consistent with the statutory provisions requiring court records and dockets to be open to reasonable public inspection (see Judiciary Law § 255-b; Uniform Justice Court Act § 2019-a; Opinions 15-215 [judge may present a monthly status report to the town or village board, subject to all applicable statutory provisions concerning confidential information or sealed records]; 07-185/08-68/08-77 [same]).

         The town’s questionnaire asks the judges whether they have “knowledge of any fraud” or “any suspicions” concerning the existence of fraud in the court. It also asks whether the judges have knowledge of any noncompliance with audit-related controls or any fraud risks or “disclosures susceptible to fraud” in the court operation. These questions are clearly designed to “facilitate court operations” and safeguard the integrity of the justice court. We understand that town justices must annually present their court records and dockets to the town’s auditing board (see Uniform Justice Court Act § 2019-a). The auditing board is then responsible for examining the records and docket and it records this fact in its minutes (see id.). However, there is no indication in the inquiry that applicable statutes require town justices to make the additional disclosures set forth in this town’s risk fraud inquiry document.

         In prior opinions, we have advised that justices may voluntarily provide information on court functioning and procedures to town and village boards, where legally permitted (see Opinions 15-215; 07-185/08-68/08-77). Here, too, the justices may respond to the town questionnaire without violating any ethical obligations.

While a judge’s disciplinary obligations under Section 100.3(D) only encompass misconduct by attorneys or other judges,¹ we have advised that “misconduct by court personnel can, under some circumstances, undermine public confidence in the integrity and impartiality of the judicial system itself” (Opinion 08-99). If, in the course of filling out the fraud risk questionnaire, the justices become aware of possible corruption in the court itself, they must report the facts they have learned to the appropriate administrative or supervising judge (see Opinions 15-189; 08-99). They also may, but are not ethically required to, report any such apparent misconduct to other authorities (see Opinion 15-189). We note that a judge has no ethical duty to investigate whether misconduct allegations are true (see e.g. Opinion 14-140).

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¹We generally advise that the inquiring judge must determine whether the two prongs of Section 100.3(D)(1) or 100.3(D)(2) are met, since he/she is best positioned to evaluate and assess all relevant, known circumstances, including the reliability of information known to the judge. Likewise, the judge is ordinarily in the best position to determine what action is appropriate under the circumstances.