Opinion 20-166

December 7, 2020

Dear :

         This responds to your inquiry (20-166) asking if you may sign a form acknowledging receipt of and compliance with an Information Resources and Technology Acceptable Use Policy recently adopted by your town board. The policy specifies guidelines for use of municipal information equipment, data and systems including computers, cell phones, the internet, text messaging and electronic mail used for official town business, regardless of its location, by employees and elected and appointed officials. The policy says users of town-provided technology “should have no expectation of privacy and their official activity may be monitored” and that “[a]ll [town] correspondence, including electronic mail and text messages, is subject to the Freedom of Information Law.” The policy further says that abuse and/or non-compliance may result in sanctions that include “disciplinary action up to and including termination.” You note that the only town-provided technology the court currently uses is the telephone service.

         In Opinion 16-55, we said a town justice must not voluntarily submit to a town ethics code where it was 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 discipling judges (see Opinion 16-55). Therefore, absent a legal requirement, we said it was ethically impermissible for a town justice to sign a statement acknowledging an obligation to comply with the local municipality’s ethics code.

Likewise, in Opinion 19-80, where a village’s sexual harassment policy purported to subject all village officials and employees to corrective action or discipline at the local level and to impose new legal duties on them, we said 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.

Here, too, as the town’s Information Resources and Technology Acceptable Use Policy purports to impose new duties on you and to subject you to corrective action or discipline at the local level, you may acknowledge receipt of the policy, but must not agree to comply or be governed by it, unless you determine you are legally required to do so.

While we cannot advise you on your legal obligations, we again note 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” (Opinion 19-80 [citations omitted]). Therefore, if you determine in good faith that you are legally required to sign the statement, you may do so without violating the Rules. Otherwise, you must not do so “unless and until required by court order or other appropriate legal mandate” (id. [citations omitted]).

         Enclosed for your reference are Opinions 19-80 and 16-55.

                                       Very truly yours,

                                       Margaret T. Walsh

                                       Supreme Court Justice

                                       Committee Co-Chair

                                       Lillian Wan

                                       Acting Supreme Court Justice

                                       Committee Co-Chair

Encls.