Opinion 20-01

January 30, 2020

Digest:         A village justice may sign a letter making representations about the disclosure of justice court records to the village court auditors if the judge makes a good-faith legal determination that he/she is permitted to do so.

Rules:          22 NYCRR 100.0(S); 100.1; 100.2; 100.2(A); 100.3(B)(1); Opinion 19-20.

Opinion:

         A village justice asks if he/she may sign a “representation letter,” prepared by the outside auditor of the court’s books and records, containing assertions or representations regarding the validity and completeness of materials provided during the audit. Among other things, the letter states that (i) the court is “responsible for the presentation of the records and report” in accordance with the court’s own criteria and “the criteria established by the New York State Office of State Comptroller and the Village Board”; (ii) the court has disclosed any known discrepancies and any communications with regulatory agencies, internal auditors or independent practitioners; (iii) the court has provided access to all records it believes are relevant to the court and the agreed-upon procedures and has “responded fully” to all inquiries from the auditors; and (iv) the auditors’ report “is intended solely for the information and use of the Justice Court … and the Village Board” and should not be used by anyone else. Nothing in the inquiry suggests the judge has any concerns about the accuracy of the proposed representations.

         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]). In addition, a judge must be faithful to and comply with the law (see 22 NYCRR 100.3[B][1]) and act in a manner that preserves the independence of the judiciary (see 22 NYCRR 100.1). An “independent” judiciary is free from outside influences and control (22 NYCRR 100.0[S]).

         In Opinion 19-20, a town board had passed a resolution to require town officers and employees, including the town justices, to execute an official undertaking in addition to the oath of office. This undertaking did not purport to “alter the judge’s ethical obligations or the legally prescribed duties of the office” nor to “grant the town board or other officials any disciplinary powers over the judge” (id.). Thus, as it did “not appear to undermine judicial independence nor create an appearance of impropriety for the judge,” we said the judge may ethically execute and file the undertaking, provided he/she concludes in good faith it is lawful to do so (id.). We emphasized 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” (id.).

         Here, the judge has been asked to make certain representations regarding the completeness of the records, possible discrepancies, and compliance with required or agreed-upon procedures during the auditor’s engagement. We do not take a position regarding the legality or scope of the rules or criteria referenced (see e.g. Opinion 19-20). However, if the justice is satisfied those rules and criteria are lawful and do not purport to expand or curtail the court’s powers or otherwise improperly interfere with court operations, we believe he/she may ethically sign such representations.

         Accordingly, we conclude a village justice may sign a “representation letter” prepared by the court’s auditors, provided the judge makes a good-faith legal determination that he/she is legally permitted to do so, and the representations do not impinge on the judiciary’s independence.