Opinion 20-33

March 19, 2020

Digest:         A part-time judge may not serve concurrently as business agent for a correction officers’ union, where the role requires representing the interests of corrections officers in the legislative or political sphere.

Rules:          CPL 2.10(25); 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(C)(2)(b); 100.5(A)(1); 100.6(B)(4); Opinions 16-32; 14-77; 13-134; 13-123; 13-25; 11-100; 06-157; 00-96; 99-137; 98-153; 98-106; 98-100; 97-152; 96-131; 96-123; 94-10; 93-110; 92-86; 90-201.

Opinion:

         A full-time business agent for a correction officers’ union has recently become a part-time judge.¹ The judge says that the business agent role requires “advocat[ing] for our members on many fronts,” encompassing the department of corrections, labor relations, the governor’s office of employee relations, and the public employment relations board, among others. Such advocacy also requires and involves communication with state legislators concerning these issues. Accordingly, the judge asks if he/she may (1) “attend legislative events” so he/she can “speak with our representatives on a more personal basis” and (2) “meet with [state legislators] to discuss legislative issues pertinent to our members,” such as the recent “announcement of prison closures in the state budget.” The judge emphasizes that, as business agent, “[i]t is imperative that [he/she] educate and express [union members’] concerns to our state representatives.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]). A judge must not accept appointment or employment as a peace officer or police officer (see 22 NYCRR 100.4[C][2][b]). Also, a judge must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]). Nonetheless, a part-time judge may accept private employment if compatible with judicial office and if it does not interfere with proper performance of judicial duties (see 22 NYCRR 100.6[B][4]).

         Although the present question appears to be a matter of first impression for the Committee, the applicable principles are set forth in several lines of prior opinions.

         Initially, we note that a part-time judge may not serve as correction officer, because the position has peace officer status under the Criminal Procedure Law (see Opinion 98-106; 22 NYCRR 100.4[C][2][b]; CPL 2.10[25]).

         We have further extended this principle, advising that a judge “must strive to avoid not only the reality, but also the appearance, that he/she is aligned in interest with law enforcement” in the judge’s extra-judicial activities (Opinion 13-123; see also Opinion 14-77 [discussing prior opinions]). Thus, for example, a judge may not be a member, or even an honorary member, of “an organization with an explicit and exclusive law enforcement orientation” (Opinion 98-100; see also e.g. Opinions 13-134 [fraternal order of police]; 99-137 [deputy sheriffs’ association]).

         Although we have said a part-time judge may accept certain non-attorney positions with a correctional facility or the NYS Department of Corrections, these positions have not involved representing the interests of correctional officers. For example, a part-time judge may be employed as a tractor trailer operator with the Department of Corrections, delivering products produced by inmates (see Opinion 00-96). We also said a part-time judge may accept employment as an Offender Rehabilitation Coordinator at a correctional facility (see Opinion 13-25); as a drug counselor for prison inmates (see Opinion 90-201); or as a hair stylist or nurse at a county jail (see Opinions 96-123; 92-86). Because these positions involve providing services to inmates, the judge must choose between the positions if inmates with whom the judge has worked appear frequently before him/her, requiring numerous disqualifications (see e.g. Opinion 90-201).

         Conversely, we said a part-time lawyer judge may not accept a position as standing legal counsel to a Police Chiefs’ Foundation, “because such a position appears to be too close to being a member of the association, which is prohibited” (see Opinion 93-110). We also advised a part-time lawyer judge may not represent the local union of sheriffs or deputy sheriffs in the county where the judge presides or even remain affiliated with a law firm that represents the union (see Opinions 98-153; 96-131). In Opinion 16-32, we said a part-time city court judge who presides over arraignments and other criminal cases may not serve as sheriff’s office part-time in-house counsel. As we explained there (id. [footnote omitted]):

Although the inquiring judge’s in-house counsel role at the sheriff’s office is limited to transactional work and the sheriff’s office seldom appears in the judge’s court, it is nonetheless in the same county as the judge’s court. From a reasonable layperson’s perspective, a judge who represents law enforcement interests as an in-house attorney, in the very same county where the judge presides, will be perceived as too closely aligned with law enforcement interests. The Committee believes, if this judge were to continue on the local county sheriff’s payroll as part-time in-house counsel, the judge’s association with law enforcement within the court’s jurisdiction, in his/her capacity as an attorney, would create an appearance of impropriety, incompatible with holding judicial office.

         Finally, we turn to the broad restrictions on a judge’s political activity. For example, a judge may not attend, even as a spectator, a “Legislative Weekend” organized by a caucus of legislators, where the activities thereat are legislative and political (see Opinion 97-152). Indeed, even when acting solely in his/her capacity as a full-time news reporter, a part-time judge may not cover politically sponsored events (see Opinion 11-100). In Opinion 94-10, a newly-elected part-time judge, prior to taking office, had been serving part-time as “Community Liaison representative in the local office of an assemblyman.” The position involved meeting with local constituents for about five hours per week in order to “listen to their problems or requests, and forward a report of some kind to the Assemblyman” (id.). We found the position incompatible with judicial office, as it involved partisan political activity. Likewise, we said the “counsel to a minority conference of a legislature would frequently and unavoidably be drawn into discussions of controversial, partisan political matters” and thus a part-time judge could not serve in that position (Opinion 06-157).

         As described, the judge’s role as business agent would require him/her to attend legislative events and lobby or otherwise advocate on behalf of corrections officers. That is, he/she must represent the interests of corrections officers in the legislative or political sphere. We believe this is impermissible, as the judge would frequently and unavoidably be drawn into discussions of controversial, partisan political matters and would, moreover, be doing so not from the perspective of a judge or the judiciary, but from the perspective of corrections officers. On these facts, the judge’s representation of corrections officers, in his/her capacity as their union’s business agent, will be perceived as too closely aligned with law enforcement interests. In sum, we believe the position is ethically incompatible with judicial office. The judge must resign from one of the two positions.

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¹ The judge is also a retired corrections officer and formerly held a leadership role in the union. He/she commenced full-time employment as the union’s business agent after retirement.