Opinion 17-66

May 4, 2017

Digest:         A judicial hearing officer may not serve on the Joint Commission on Public Ethics. 

Rules:          Executive Law § 94; Judiciary Law § 211(4); 22 NYCRR part 40; 22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); 100.3(A); 100.4(A)(1)-(3); 100.4(B)(1); 100.4(C)(2)(a); 100.4(F); 100.6(A); 100.6(B)(1); 100.6(B)(4); Opinions 16-87; 16-60; 16-55; 15-188; 14-129(A); 12-181/12-186; 11-50; 10-28; 07-155/98-31; 06-132; 06-09; 02-113; 02-43; 01-49; 98-137.

Opinion:

         A judge with supervisory and/or administrative authority over one or more judicial hearing officers (JHOs) asks if he/she may permit an individual to serve concurrently as a JHO and as a member of the Joint Commission on Public Ethics (JCOPE). For the reasons that follow, we conclude that a JHO may not serve as a member of JCOPE.

         JCOPE is a statutorily created commission (see Executive Law § 94) whose members are appointed by the governor, lieutenant governor and certain legislative leaders. Its website describes JCOPE as an “independent agency” with “oversight over both the [e]xecutive and [l]egislative [b]ranches.” Among other things, JCOPE oversees executive and legislative branch financial disclosures¹ and state lobbyists’ filings; provides training and advice on lobbying and ethics laws for lobbyists and executive and legislative branch officers and employees; and is vested with certain investigative and enforcement powers. In particular, JCOPE “investigates potential violations of the state’s ethics laws, the ‘Little Hatch Act,’ and the Lobbying Act as they apply to state legislators, candidates for the [l]egislature and legislative employees, as well as the four statewide elected officials, candidates for those offices, executive branch state employees, certain political party chairs, and lobbyists and their clients” (http://www.jcope.ny.gov/about/jurisdiction.html [citations omitted]). JCOPE further has the power to conduct hearings and impose civil penalties for violations by executive branch officers and employees as well as lobbyists and clients (id.).² In addition, JCOPE proposes rules and legislation pertaining to its functions and responsibilities, such as amendments to lobbying laws and disclosure laws. For example, in its current “Reform E” proposal, JCOPE seeks to amend the Legislative Law regarding lobbying and disclosure requirements for political action committees and the filing of political consulting reports.³

         The inquiry further notes that JCOPE has “operated in a highly charged political climate, with ongoing (and very public) accounts of partisan divisiveness.” The Committee observes that several JCOPE determinations and interpretations have generated significant controversy and litigation (see e.g. Jesse McKinley, Public Relations Firms Sue New York Ethics Panel Over New Disclosure Rule, NY Times, Mar. 8, 2016; Joel Stashenko, Ethics Panel Rejects NYCLU’s Donor Disclosure Exemption, NYLJ, Apr. 28, 2017; Bill Mahoney, PR firms file suit over 'hopelessly vague' JCOPE lobbying definition, Politico, Mar. 8, 2016; Glenn Blain, Donald Trump Sues JCOPE over its inaction on ethics complaint against Attorney General Schneiderman, NY Daily News, Aug. 12, 2014).

         JHOs must comply with the Rules Governing Judicial Conduct “in the performance of their judicial functions and otherwise shall so far as practical and appropriate use such rules as guides to their conduct” (22 NYCRR 100.6[A]). Thus, for example, a judge or JHO must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]), and must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). Although JHOs, like part-time judges, are not necessarily prohibited from serving on “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” (see 22 NYCRR 100.4[C][2][a]; 100.6[B][1]),⁴ such service is permitted only where consistent with other provisions of the rules, including restrictions on a judge’s extra-judicial activities. A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), and therefore all extra-judicial activities must be compatible with 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]).

         Accordingly, service on a public commission is impermissible where it would, for example: reflect on the judge’s impartiality (see Opinion 07-155/98-31 [part-time judge may not serve on charter review commission]; 22 NYCRR 100.2[A]; 100.4[A][1]); undermine the judiciary’s integrity and independence (see Opinions 07-155/98-31; 15-188 [extra-judicial activities that raise serious separation of powers concerns are impermissible]; 22 NYCRR 100.1; 100.2[A]); interfere with performance of judicial duties (see Opinion 10-28 [judge may serve as commissioner of agency provided, inter alia, disqualifications are not so frequent as to interfere with judicial duties]; 22 NYCRR 100.4[A][3]); or place the judge in an adversarial role incompatible with judicial office (see Opinion 16-87 [town justice may not serve as town workplace ombudsman as it would place him/her in adversarial role as government official]; 22 NYCRR 100.4[A][3]).

         The Committee notes, initially, that a quasi-judicial official’s service on JCOPE may raise separation-of-powers concerns, to the extent JCOPE has the power to investigate and discipline ethics violations in the other branches of government. This is particularly true where, as here, the governing statutes do not appear to mandate judicial branch participation, either in the appointing process⁵ or on JCOPE itself (cf. Opinion 12-181/12-186 [distinguishing between a statute that “requires [a] type of advisory committee to include judges” and a resolution that merely “appears to contemplate and welcome the participation of judges”]).

         In Opinion 06-09, the Committee considered whether a JHO could serve on a municipal ethics board with similar advisory, investigative and disciplinary functions as JCOPE. The Committee distinguished between different types of municipal ethics boards (id. [citations omitted]):

This Committee has previously concluded that a part-time judge could accept appointment to a municipality’s ethics committee where the tasks of the committee were to revise the local code of ethics for adoption by the local council and then to recommend either that a separate board of ethics be established or that the committee itself should become the board of ethics. But, where an ethics board is empowered to hold hearings concerning complaints against members of the municipal government and recommend sanctions, the Committee reached a different result. A judge’s participation in such hearings would inevitably involve the judge in matters of public controversy, and the imposition of sanctions could lead to court action in the county where the judge serves, thus impairing the public’s confidence in the integrity and impartiality of the judiciary.

In the present inquiry, although the board will issue advisory opinions, the municipal code also authorizes the board to conduct investigations into allegations of misconduct, in order to determine whether a violation of the municipality’s ethics code has occurred, and to conduct hearings concerning the allegations. Because these additional activities would involve board members in a role more than advisory – but as active participants in matters of public controversy with the potential for litigation – the inquiring JHO should not serve in that capacity.

         Similarly, the Committee has advised part-time judges not to serve on ethics boards where the board’s functions are investigative and adjudicatory and/or where board membership would involve the judge in matters of public controversy (see Opinions 02-43 [county ethics board that hears complaints about county employees and recommends sanctions]; 01-49 [municipal ethics board that will hear complaints against members of the municipal government]; compare e.g. Opinion 06-132 [a part-time judge may serve on a municipal ethics board whose sole authority is to issue advisory opinions and propose revisions to the municipality’s ethics code]).

         Likewise, JCOPE’s role in proposing legislation concerning lobbying and other “highly controversial or political matters largely unrelated to the law, the legal system and the administration of justice” also renders a JHO’s involvement inappropriate (Opinion 16-60), especially when such controversies have already resulted in litigation (see e.g. Opinion 98-137 [judge may not maintain membership in an activist organization, where “[v]irtually all of [its activities] involve the adoption, advocacy and pursuit of policies and positions in matters that are of substantial public controversy, many of which, in whole or in part, eventuate in litigation”]).

         Accordingly, a JHO should not serve as a member of JCOPE in view of JCOPE’s functions and the controversies attendant thereto, inasmuch as such service raises issues about the judiciary’s independence and impartiality and would likely involve the JHO unnecessarily in matters of public controversy and litigation. Thus, this judge must not permit a JHO subject to his/her supervision, direction, or control to serve on JCOPE.

Note on Opinion 14-129(A)

         The Committee’s present decision does not require reconsideration of Opinion 14-129(A), because membership on JCOPE itself raises very different issues and concerns than accepting employment as a JCOPE hearing officer. The Committee has advised that JHOs may serve as hearing officers in a wide variety of situations (see Opinion 14-129[A] [citing prior opinions]; cf. 22 NYCRR 100.4[B][1]; 100.4[F] [unlike a full-time judge, a part-time judge may “perform judicial functions in a private capacity”]). Service as a JCOPE hearing officer in a particular case involves performing quasi-judicial duties involving a specific individual, considering the facts and law applicable to him/her. This mere employment relationship (cf. 22 NYCRR 100.6[B][4] [part-time judge may accept “public employment in a federal, state, or municipal department or agency”]) does not raise the same separation-of-powers concerns as membership in a body charged with overseeing ethics in the non-judicial branches of government. Nor does service as a JCOPE hearing officer involve the broad policy-setting functions of membership in JCOPE itself; it is these broader functions which invite substantial public controversy and litigation.

         In other words, performance of quasi-judicial functions by a JHO in an extra-judicial role, even on behalf of JCOPE, is not likely to undermine public confidence in the judiciary’s impartiality, integrity or independence or to involve a JHO impermissibly in matters of public controversy and litigation.

         Thus, the Committee adheres to Opinion 14-129(A), where we concluded it is “not inherently unethical for a part-time judge or JHO to serve as a hearing officer for” JCOPE, even though such service “may, at times, result in highly publicized and even controversial decisions concerning the ethical propriety of another public official’s conduct.”

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         ¹ By contrast, the UCS Ethics Commission oversees judicial branch financial disclosures (see Judiciary Law § 211[4]; 22 NYCRR pt 40).

         ² Its findings for legislative branch officers, employees and candidates must be referred to the Legislative Ethics Commission for enforcement.

         ³ Proposed 2017 legislative amendments are available at http://www.jcope.ny.gov/advice/proposed_%20regs2017.html.

         ⁴ Where the Rules distinguish between part-time and full-time judges, the Committee has generally distinguished between full-time and part-time quasi-judicial positions (see e.g. Opinion 11-50)

         ⁵ As noted, only executive and legislative branch officials have the power to appoint members of JCOPE. By contrast, the Commission on Judicial Conduct has “members appointed by all three branches of government” (Opinion 16-55 n1).