Opinion 20-29

January 30, 2020

Digest:         SCAR hearing officers are subject to the same restrictions as sitting judges with respect to political activities.

Rules:          Real Property Tax Law § 731(1); 22 NYCRR 100.2; 100.2(A); 100.5(A)(1); 100.5(A)(1)(a), (c), (g); 100.5(A)(2); 100.6(A); Opinions 18-09; 15-134; 13-133.

Opinion:

         An administrative or supervising judge anticipates approximately 100,000 new Small Claims Assessment Review (SCAR) petitions will be filed in his/her jurisdiction in the next few months. They “will require great effort” from inside and outside the court system to process, including the appointment of many outside attorneys, as well as multiple law clerks and court attorneys, to serve as SCAR hearing officers (see Real Property Tax Law § 731[1]). The judge requests reconsideration of Opinions 13-133 and 15-134, which suggest that SCAR hearing officers are subject to the same limitations on political activities as judges and quasi-judicial officials, as this restriction will discourage many capable and qualified attorneys from agreeing to serve as SCAR hearing officers.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). In addition, judges must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]). For example, a judge must not act as a leader or hold office in a political organization (see 22 NYCRR 100.5[A][1][a]); engage in any partisan political activity (see 22 NYCRR 100.5[A][1][c]); nor attend political gatherings (see 22 NYCRR 100.5[A][1][g]).¹

         Non-judges “who perform judicial functions within the judicial system” must comply with the Rules Governing Judicial Conduct in performing their judicial duties and otherwise must “so far as practical and appropriate” use such rules as guides to their conduct (22 NYCRR 100.6[A]).

         We have consistently applied the limitations on political activity contained in Section 100.5 to quasi-judicial officials (see e.g. Opinion 13-133 [citing prior opinions]). Indeed, we have said a judicial hearing officer must not engage in political activities as long as the JHO designation has not been rescinded, even though an administrative judge has stated that the JHO will not be given any assignments in the current fiscal year (see Opinion 18-09).

         Further, we have said principal law clerks who are appointed to serve two mornings per month as part-time as SCAR hearing officers during regular court hours as part of their job responsibilities are subject to the same restrictions as sitting judges with respect to political activities (see Opinions 13-133; 15-134).

         The question presented is whether the same principle applies to other court employees and to private attorneys who agree to serve as SCAR hearing officers on an emergency basis to help handle a tremendous caseload. We again conclude that SCAR hearing officers are “persons … who perform judicial functions within the judicial system” within the meaning of Section 100.6(A) (see Opinion 13-133).  We see no basis to distinguish between court employees who serve as SCAR hearing officers during their regular working hours as part of their work assignments and outside attorneys who serve as volunteers in this capacity.  Nor does the temporary or emergency nature of the assignment change the applicable ethical obligations or require reconsideration of Opinions 15-134 and 13-133.

         We emphasize that, where an individual not otherwise subject to Part 100 serves as a SCAR hearing officer for a specified period pursuant to an administrative order, his/her obligation to comply with Part 100 ends immediately at the conclusion of his/her service as a SCAR hearing officer.

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¹ Of course, a judge who is seeking election or re-election to judicial office may engage in certain permissible political activities in furtherance of his/her own judicial campaign during the applicable window period (see generally 22 NYCRR 100.5[A][2]).