Opinion 20-76

April 30, 2020

Digest:         A part-time judge may accept temporary employment with a bank to assist in evaluating loan applications from small businesses under the federal Paycheck Protection Program.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(D)(3); 100.6(B)(1); 100.6(B)(4); Opinions 19-77; 18-77; 16-58.

Opinion:

         A part-time town or village justice asks if he/she may accept temporary employment with a bank to assist in evaluating loan applications from small businesses under a federal agency’s Paycheck Protection Program.¹ The judge would, working from home on his/her off hours, “verify the information on the loan application with the banking information on record with the bank.” We understand the bank is unlikely to appear before the judge’s court.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). However, part-time judges are exempt from the prohibition on serving as an “employee or other active participant of any business entity” (22 NYCRR 100.4[D][3]; 100.6[B][1]). Indeed, the rules expressly permit them to accept private employment, “provided [it] is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]).

         While we have not previously addressed the propriety of a part-time judge working for a financial institution, we believe the proposed job responsibilities, i.e. verifying information on a loan application with the bank, are permissible. For example, we have said a part-time judge may conduct background investigations for the U.S. Office of Personnel Management (see Opinion 16-58) or serve as chief financial officer/treasurer for an airport authority, with oversight of accounting and financial affairs (see Opinion 18-77). Although outside the employment context, a part-time judge may also participate in an audit review process of a not-for-profit historical society’s records (see Opinion 19-77). Where, as here, the bank does not ordinarily appear in the judge’s court, we believe the proposed employment is unlikely to interfere with the judge’s judicial duties.

         Accordingly, we conclude this part-time judge may accept temporary employment with a bank to evaluate loan applications from small businesses under the federal Paycheck Protection Program.

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¹ We understand the program is intended to provide assistance to small businesses during the current public health crisis.