Opinion 19-146

December 12, 2019

Please Note: See AO-347 concerning the status of Section 100.4(H)(2).

Digest:         (1) A full-time judge may not serve as an advisor to the U.S. President on disability programs and services nor on an advisory committee to the U.S. Department of Health and Human Services.

(2) The judge may meet with federal executive branch officials on his/her own behalf to discuss his/her experiences as a disabled individual, subject to certain limitations.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.4(B); 100.4(C)(1); 100.4(C)(2)(a); 100.4(H)(1)(a)-(b); 100.4(H)(2); Opinions 18-144; 18-107; 17-12; 16-157; 15-133; 12-184; 06-173; 06-137; 89-132.

Opinion:

         A full-time judge who serves on a court system’s advisory committee on access for people with disabilities asks if he/she may accept similar appointments in the federal executive branch. Specifically, the White House invited him/her to serve (1) as advisor to the President on disability programs and services and/or (2) on an advisory committee to the U.S. Department of Health and Human Services on such issues. Alternatively, the judge asks if he/she may attend meetings at the White House to educate federal executive branch officials, such as the director of the Domestic Policy Council, the President, or other appropriate staff, concerning his/her own personal experiences as an individual with a disability and the issues he/she faces.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]). Accordingly, any extra-judicial activities must be compatible with judicial office and must not (1) cast doubt on his/her capacity to act impartially as a judge, (2) detract from the dignity of judicial office, or interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge generally may speak, lecture, and teach, subject to certain limitations (see 22 NYCRR 100.4[B]). However, of particular note here, a full-time judge “shall not accept appointment to 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” (22 NYCRR 100.4[C][2][a]). In addition, a full-time judge “shall not appear at a public hearing before an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice or except when acting pro se in a matter involving the judge or the judge’s interests” (22 NYCRR 100.4[C][1]).

         The federal appointments here are not concerned with the improvement of the law, the legal system or the administration of justice. Rather, these appointments would involve the judge in “issues of fact or policy” concerning executive branch disability programs and services. Accordingly, a full-time judge may not accept the appointments (see 22 NYCRR 100.4[C][2][a]; Opinions 16-157 [full-time judge may not serve on a regional emergency medical services council, in light of “the policy and decision making authority [it has] under the Public Health Law”]; 89-132 [congressperson’s advisory committee]; 06-173 [state athletic commission inspector]; 06-137 [full-time judge may not serve on a county youth board’s advisory committee which seeks “to promote ‘healthy outcomes’ and ‘positive development’ in youth]; see also Opinion 18-144 [full-time judge may not serve on a governmental task force to reduce and prevent lead poisoning, but may serve “if the task force is sponsored by a not-for-profit organization, and is not itself a governmental committee or commission or other governmental position”]).

         For the remaining question, we note the judge must not appear at any public hearing before an executive body or official “except when acting pro se in a matter involving the judge or the judge’s interests” (22 NYCRR 100.4[C][1]). Nonetheless, he/she may otherwise speak about his/her personal experiences, background, and/or community service, as this is clearly compatible with judicial office, and unlikely to cast reasonable doubt on his/her impartiality or interfere with proper performance of judicial duties (see Opinions 15-133; 17-12; 22 NYCRR 100.4[A][1]-[3]). Nor does the judge’s proposed attendance or participation appear to promote any particular political candidate or party, nor address matters of substantial public controversy (see Opinion 18-107).

         The judge should participate purely as a private citizen, and not use official stationery, or refer to his/her judicial title or employment when communicating with the Domestic Policy Council or the Department of Health and Human Services concerning his/her own interests (see Opinion 12-184). Moreover, the judge’s participation is subject to certain limitations on judicial speech, conduct, public comment, impermissible ex parte communications, and any appearance of impropriety (see Opinion 15-133).

         In sum, the judge may meet with federal executive branch officials on his/her own behalf to discuss his/her experiences as a disabled person, and may also meet with the Domestic Policy Council or the Health and Human Services Department’s advisory committee, subject to the stated limitations.¹

         If compensation is offered, the amount must be reasonable (see 22 NYCRR 100.4[H][1][a]) and subject to a reporting requirement if it exceeds $150 (see 22 NYCRR 100.4[H][2]). Expense reimbursement is limited to the actual cost of travel, food, and lodging; “[a]ny payment in excess of such amount is compensation” (see 22 NYCRR 100.4[H][1][b]).

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¹ We assume the judge will be invited to attend a regular meeting of the Domestic Policy Council and/or the Health and Human Services Department’s Advisory Committee as an invited guest speaker for educational purposes, rather than a public hearing or other deliberative process (see 22 NYCRR 100.4[C][1]). If this assumption is incorrect, we ask the judge to provide additional details for our consideration.