Opinion 17-77

May 4, 2017

Digest:         A judge may be a housing resource for a third-degree relative on parole, but may not use the prestige of judicial office to seek exceptions to the parole board’s procedures.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); Opinion 15-92(B); 14-147; 13-38; 12-96; 00-09.

Opinion:

A judge’s third-degree relative¹ is currently incarcerated upon conviction of a felony. The relative is preparing a written housing plan for submission to the parole board and would like to list the judge’s home as a housing resource. The judge is willing to host the paroled relative in his/her home but believes that unannounced home visits and interviews of the judge’s neighbors, as required by the parole board, would be disruptive to the judge’s spouse’s professional practice² and would also be “unacceptable given our occupations.” Accordingly, the judge asks if he/she may (1) serve as a housing resource for his/her relative and (2) advise the parole board that the judge and his/her spouse will not consent to unannounced home visits and neighbor interviews “because of our personal and family needs.” The judge recognizes that “[i]f those requirements … are non-waivable we will be denied as a resource.”

A judge must always avoid even the appearance of impropriety (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 may engage in extra-judicial activities that are not incompatible with judicial office and do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). However, a judge must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]).

In general, a judge may take the same steps to protect or advance his/her direct, personal interests as other similarly situated individuals who are not judges (see e.g. Opinions 15-92[B]; 13-38; 00-09). Accordingly, the Committee concludes this judge may likewise serve as a housing resource for a relative on parole.

However, the judge must be careful not to lend the prestige of judicial office in any discussion or negotiations with the parole board (see e.g. Opinion 12-96). In particular, the judge must not seek an exception to the parole board’s standard procedures based on his/her judicial status. Conversely, since the judge’s spouse is a non-judge, the Committee can see no bar on seeking an exception based on his/her spouse’s profession. To avoid any possible appearance of impropriety, the Committee recommends the judge’s spouse, rather than the judge, engage in any such negotiations or discussion with the parole board.

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          ¹When analyzing disqualification requirements, the Committee does not distinguish between relatives by blood or by marriage (e.g. Opinion 14-147 n 1). Third-degree relatives of the judge and his/her spouse include nieces, nephews, aunts, uncles, great-grandparents or great-grandchildren, and their respective spouses.

          ²The judge’s spouse works in a licensed profession and conducts a practice from their home.