Opinion 19-20

March 14, 2019

Digest:         A judge who decides in good faith he/she may legally execute and file an undertaking can do so without violating the Rules Governing Judicial Conduct.

Rules:          Judiciary Law § 212(2)(l); Public Officers Law § 11; Town Law § 25; Uniform Justice Court Act §104; 22 NYCRR 100.0(S); 100.1; 100.2; 100.2(A); 100.2(C); 100.3(B)(1); Opinions 16-55; 14-34; 09-137.

Opinion:

         A town board has passed a resolution to require town officers and employees, including the town justices, to “execute an Official Undertaking” pursuant to Town Law § 25 and Public Officers Law § 11, in addition to the oath of office. The proposed undertaking requires each justice to agree to “faithfully perform and discharge the duties of [his or her] office” and “promptly account for and pay over all moneys or property received as a Town Officer, in accordance with the law.”

         The resolution does not purport to describe the legal or ethical duties of any town office. In light of Opinion 16-55, the inquiring town justice asks if he/she may sign and file the proposed official undertaking, and draws our attention to the following statutory language: “A neglect or an omission to take and file such an oath, or to execute and file such undertaking within the time prescribed herein, except in the case of town justices, shall be deemed a refusal to serve and the office may be filled as in case of vacancy” (Town Law § 25 [emphasis added]).

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and to preserve the judiciary’s independence (22 NYCRR 100.1; see also 22 NYCRR 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control”]). A judge must not convey or permit others to convey an impression they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). A judge must also “respect and comply with the law” (22 NYCRR 100.2[A]) and “be faithful” to it (22 NYCRR 100.3[B][1]).

         In Opinion 16-55, we said a town justice must not voluntarily submit to a town ethics code, where it is arguably “more stringent” in some ways than the Rules Governing Judicial Conduct, and would purportedly grant the town board disciplinary power over the judge. Absent a legal requirement to comply, the town’s ethics code would impermissibly impinge on the judiciary’s independence, and would be inconsistent with constitutionally prescribed procedures for disciplining judges and justices (see id.).

         Unlike the town ethics code addressed in Opinion 16-55, the proposed official undertaking does not purport to alter the judge’s ethical obligations or the legally prescribed duties of the office. Thus, it does not appear to be inconsistent or in conflict with the Rules Governing Judicial Conduct. Nor does the undertaking purport to grant the town board or other officials any disciplinary powers over the judge. In short, unlike the town ethics code, this undertaking does not appear to undermine judicial independence nor create an appearance of impropriety for the judge.

         Indeed, the inquiry suggests the town has identified a purported statutory basis for the requirement (see Uniform Justice Court Act § 104; Public Officers Law § 11; Town Law § 25). We cannot determine whether this justice is legally required, by statute or otherwise, to sign or file an official undertaking (see Judiciary Law § 212[2][l]). Clearly, the judge is not ethically required to defer to the legal views of another branch of government (see Opinions 16-55; 14-34). However, a judge who makes a good-faith legal determination based on the apparently controlling statutes and case law (if any) is necessarily acting ethically (see e.g. Opinions 16-55; 09-137 [“a judge who directs a pre-trial conference based upon controlling statutory language, per se acts ethically, even if an appellate court later reverses on the ground that the judge’s statutory interpretation was erroneous”]).

         Thus, if the judge decides in good faith he/she is legally bound to sign and file this undertaking, he/she may do so without violating the Rules Governing Judicial Conduct (see Opinion 16-55).

         Conversely, if the judge determines in good faith he/she is not legally permitted to sign and file the proposed undertaking, he/she must not do so unless and until required by court order or other appropriate legal mandate (see id.). As we have noted, “any questions concerning the correctness of the judge’s legal interpretation, to the extent unsettled, must be raised and addressed by persons with standing in the appropriate legal venue” (Opinion 14-34 [internal quotation marks and citation omitted]).