Opinion 18-09
January 24, 2018
Digest: A judicial hearing officer must not engage in political activities as long as the JHO designation has not been rescinded, even though an administrative judge has stated that the JHO will not be given any assignments in the current fiscal year.
Rules: 22 NYCRR 100.2; 100.2(A); 100.5(A)(1); 100.5(A)(1)(a), (c), (g); 100.5(A)(2); 100.6(A); Opinions 17-96; 13-133; 11-38; 09-165; 05-14; 03-24; 00-117; 89-126.
The inquirer states that he/she is designated to serve as a judicial hearing officer (“JHO”) through the end of 2018. He/she has not yet received any assignments, however, and his/her district administrative judge has advised that, due to budgetary constraints, no assignments will be made in the judicial district until April 2018, at the earliest. Under these circumstances, the JHO asks if he/she may serve on the campaign committee for a candidate seeking elective judicial office. The JHO states that if and when a case is assigned to him/her, he/she “would immediately cease” all such political activities.
JHOs must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). In addition, JHOs must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]). For example, a JHO must not act as a leader or hold office in a political organization (see 22 NYCRR 100.5[A][1][a]); engage in any partisan political activity (see 22 NYCRR 100.5[A][1][c]); nor attend political gatherings (see 22 NYCRR 100.5[A][1][g]).1
The JHO relies, in part, on an April 20, 2011, memorandum from then Chief Administrative Judge Ann Pfau, which discussed significant budget cuts necessitating suspension of assignments to most JHOs. The 2011 memorandum states that JHOs may “apply for temporary removal of their names from any and all of their assigned panels” during the suspension of the JHO program so they could accept Part 36 assignments and participate in contested matters, thereby ameliorating the financial impact of the suspension order. However, it also states that, “[s]o long as a JHO remains listed on an assignment panel, the usual practice and assignment restrictions continue in force.”
In Opinion 11-38, relying on the 2011 memorandum, we advised that JHOs were not subject to certain ethical restrictions on their financial activities “while the JHO program is suspended.”2 Significantly, the 2011 memorandum concerns only restrictions on the practice of law and Part 36 assignments and has nothing to do with political activity by JHOs. We also note that the inquiring JHO’s name has not been removed from his/her assigned panels, whether temporarily or otherwise.
That the inquirer has not been, and may not be, assigned any cases in the near future, therefore, does not alter the long-held principle that JHOs must comply with the Rules Governing Judicial Conduct in the performance of their judicial functions and, so far as practical and appropriate, use such Rules as a guide to their conduct (see 22 NYCRR 100.6[A]). We have “consistently applied the limitations on political activity contained in Section 100.5 to quasi-judicial officials” (Opinion 13-133), including JHOs (see e.g. Opinions 17-96; 09-165; 05-14).
We have advised that a judge may not take a leave of absence to campaign for an elective non-judicial office (see Opinion 89-126) or to participate in a candidate’s campaign for elective public office (see Opinion 03-24). As we explained in Opinion 03-24, “it is the status of the judge as a judge that gives rise to the applicability of the prohibition against political activities, and not whether the judge is actually performing judicial duties at a particular point in time” (id.). Likewise, we conclude the inquirer should not engage in the proposed political activities while he/she retains his/her status as a JHO, even if his/her district administrative judge has advised that he/she will not be given any assignments in the current fiscal year.
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1 Of course, a JHO who is seeking election to judicial office may engage in certain permissible political activities in furtherance of his/her own judicial campaign during the applicable window period (see generally 22 NYCRR 100.5[A][2]).
2 We thus “retract[ed] Opinion 00-117 and any other opinions that impose such limitations while the JHO program is suspended” (Opinion 11-38), but further specified that “Opinion 00-117 and any other such opinions are deemed re-issued and effective on the date that the Office of Court Administration re-instates the JHO program” (id.).