Opinion 20-95

June 18, 2020

Digest:         A part-time judge may not serve as a business agent for a correction officers' union.

Rules:          CPL 2.10(25); 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.6(B)(4); Opinions 20-33; 13-123; 98-106; 97-33.

Opinion:

A part-time judge asks whether, in light of Opinion 20-33, he/she may serve as a business agent for a correction officers’ union, when the role does not involve any legislative or political advocacy.¹ Although the judge was formerly employed as a correction officer, he/she retired nearly a decade ago, and the judge emphasizes the business agent role “is not a state civil service position.”

         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]). A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]). Thus, a part-time judge may only accept private employment if it “is not incompatible with judicial office and does not conflict or interfere with the proper performance of judicial duties” (22 NYCRR 100.6[B][4]).

         We previously advised that a part-time judge may not serve concurrently as business agent for a correction officers’ union, where the role requires representing the interests of correction officers in the legislative or political sphere (see Opinion 20-33). The present inquiry asks us to consider more broadly whether the underlying position is compatible with judicial office once any legislative/political duties are removed.²

         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 20-33, quoting Opinion 13-123). As we understand it, serving as business agent for a correction officers’ union involves representation of correction officers’ interests to management, the public, and/or unspecified third parties with whom the union does business.³ As correction officers have peace officer status under the Criminal Procedure Law (see Opinions 20-33; 98-106; CPL 2.10[25]), we believe the business agent role will be perceived as too closely aligned with law enforcement interests and is thus incompatible with judicial office.

         Thus, a judge may not serve as business agent for a correction officers’ union.

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¹ The judge explains that such duties can be performed by another employee, rather than the business agent.

² We note, but need not here resolve, a possible tension between Opinion 20-33 and Opinion 97-33. For present purposes, we merely observe that the activities described in Opinion 97-33 did not involve representing the interests of peace officers or police officers.

³ Although the judge has not described his/her specific duties as business agent, we note the following general description from a career site: “Labor union business agents manage the daily business matters of labor unions and act as liaisons between the union and management during contract negotiations. They manage business affairs for the labor unions that employ them, and inform the media of labor union happenings. Labor union business agents are also responsible for informing employers of workers' concerns.”