Opinion 19-80
June 20, 2019
Digest: (1) Where a village’s sexual harassment policy purports to subject all village officials and employees to corrective action or discipline at the local level and to impose new legal duties on them, a village justice (a) may acknowledge receipt of the policy but (b) must not agree to comply with it unless the judge determines he/she is legally required to do so. (2) The justice may attend, and permit the court clerk to attend, the village’s mandatory compliance training for sexual harassment and workplace violence, where the program is educational and preventive in nature. (3) The justice may permit the court clerk to certify he/she will abide by the village’s sexual harassment policy, provided that doing so does not interfere or conflict with the Rules Governing Judicial Conduct.
Rules: Labor Law § 201-g; 22 NYCRR 100.0(S); 100.1; 100.2; 100.2(A); 100.2(C); 100.3(B)(1); 100.3(B)(4)-(5); 100.3(C)(1); 100.3(C)(2); Opinions 18-161; 17-146; 17-32; 16-55; 15-179; 15-26/15-44; 12-74.
Opinion:
The inquiring justice, along with other village officials and employees, recently received a copy of the village’s sexual harassment policy and a blank complaint form (see Labor Law § 201-g). Among other things, the policy says managers and supervisors “will be penalized” for engaging in sexual harassment or allowing it to continue, and “are required to report” sexual harassment complaints to the municipality’s governing body. At the village’s request, the inquiring justice signed a document acknowledging receipt of the policy and form; however, he/she has not agreed to comply with the policy or be governed by it. The village has also directed its officers and employees, including its judges, court clerks, and police officers, to attend “mandatory compliance training for sexual harassment and workplace violence.” The village’s insurance broker will present the program. The justice asks several questions concerning these facts.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must uphold the judiciary’s independence (see 22 NYCRR 100.1; see also 22 NYCRR 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control”]) and thus must not convey or permit others to convey the impression they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). A judge must respect and comply with the law (see 22 NYCRR 100.2[A]) and “maintain professional competence in it” (22 NYCRR 100.3[B][1]). Significantly, a judge also must avoid bias and prejudice in performing judicial duties (see 22 NYCRR 100.3[B][4]) and discharging his/her administrative responsibilities (see 22 NYCRR 100.3[C][1]). The prohibition includes “words or conduct” manifesting “bias or prejudice based upon ... sex, sexual orientation, gender identity, [or] gender expression” (22 NYCRR 100.3[B][4]). The judge must also “require” similar conduct of “staff, court officials and others subject to the judge’s direction and control” (22 NYCRR 100.3[B][4]; 100.3[C][2]).
1. Must the justice take any corrective measures after acknowledging receipt of the village’s sexual harassment policy and complaint form?
The acknowledgment document simply states: “By signing below I have received the sexual harassment policy and blank complaint form from the Village of ___.” It contains no direct or indirect pledge to be bound by the policy, nor any other comments or representations.
We can see no impropriety in truthfully acknowledging receipt of this document, without further comment. Thus, the judge need not take any corrective measures.
2. May the justice sign a statement of compliance with the village’s policy regarding sexual harassment and discrimination?
Town and village justices must proceed very cautiously when their municipality proposes to subject them to corrective actions or discipline at the local level. Indeed, a town or village justice’s “voluntary submission to the authority of the [local governing body] for discipline and/or removal,” contrary to the constitutional scheme, “would raise serious separation-of-powers concerns, and likewise infringe on the judiciary’s independence” (see Opinion 16-55). It could also “create an impression the [municipality] is in a special position to influence the court – not merely through due exercise of its budgetary powers, but also through an ad hoc disciplinary process as the [municipality] or its agents interpret” a policy they themselves have promulgated (id.).
Here, just as in Opinion 18-161, the village’s new policy on sexual harassment “delineates certain prohibited actions, reporting and investigative procedures, and outlines certain corrective actions and/or discipline.” Because the policy purports to impose new duties on the judge and to subject him/her to discipline by the village’s governing body, we believe the judge must not agree to be bound by it, absent a legal requirement (see id.). Thus, as stated in Opinion 18-161 (citations omitted):
Again, we cannot determine whether a judge is legally required to sign such a statement of compliance. However, we have advised that “a judge who makes a good-faith legal determination based on the apparently controlling statutes and case law (if any) is necessarily acting ethically.” Therefore, if you determine in good faith that you are legally required to sign the statement, you may do so without violating the Rules. If, however, you determine in good faith that you are not legally required to sign the statement, you must not do so “unless and until required by court order or other appropriate legal mandate.”
3. May the justice attend the “mandatory compliance training for sexual harassment and workplace violence”?
We have said a judge may participate in a panel discussion about preventing and reducing underage drinking, where the program is educational in nature and is unlikely to be perceived as a law enforcement program (see Opinion 12-74); and may attend a free public conference on human trafficking and commercial sexual exploitation of children, where the program will focus primarily on helping identify and assist at-risk youth (see Opinion 17-146). Here, too, the program is unlikely to be perceived as a law enforcement or prosecution-oriented program or otherwise cast doubt on the judge’s ability to be impartial (see generally Opinion 15-26/15-44 [analyzing the propriety of a judge’s involvement in a variety of domestic violence related events]). Rather, the village’s insurance broker will present the program, underscoring its educational and preventive nature. The fact that the village police and other village employees will also attend the training does not create an appearance of impropriety.
We have said a judge may give a presentation on recognizing and reducing racial prejudice (see Opinion 15-179). Similarly, attending a training session on local anti-harassment policies and grievance mechanisms could potentially help a judge comply with his/her ethical obligations to avoid and curb bias and prejudice (see 22 NYCRR 100.3[B][4]-[5]; 100.3[C][1]-[2]) and to “maintain professional competence in” the law (22 NYCRR 100.3[B][1]).
Accordingly, we conclude the judge may attend.
4. May the justice permit the court clerk to attend the mandatory training and/or sign a statement of compliance?
For the reasons outlined above, we conclude the village justice may also permit the court clerk to attend the training.
Although a town justice must not certify he/she will abide by the town ethics code (see Opinion 16-55), he/she may nonetheless permit his/her court clerks to do so (see Opinion 17-32). As we explained (id.):
a town court clerk’s adherence to a town ethics code, even one providing for discipline or removal of the court clerk “in the manner provided by law,” does not necessarily raise the same institutional and constitutional concerns, provided the town ethics code does not interfere with the judge’s authority to direct and control court operations as provided by law or otherwise require conduct incompatible with the integrity and independence of the judiciary.
We likewise conclude a village justice may permit his/her court clerks to certify they will abide by the municipality’s sexual harassment policy, provided doing so does not otherwise interfere or conflict with the Rules Governing Judicial Conduct.