Opinion 20-96

June 18, 2020

Digest:         A part-time judge may serve on a county executive’s working group to review training at the county police academy, where the group’s membership is balanced and its goal is to help reduce and eliminate implicit bias. The judge must, however, be mindful of the need to maintain public confidence in his/her impartiality and must take particular care not to comment on any pending or impending case in the United States or its territories.

Rules:          CPL 1.20; 22 NYCRR 100.0(S); 100.1; 100.2; 100.2(A); 100.2(C); 100.2(D); 100.3(A); 100.3(B)(4); 100.3(B)(8); 100.3(C)(1)-(2); 100.4(A)(1), (3); 100.4(B); 100.4(C)(2)(a)-(b); 100.6(B)(1); Opinions 20-04; 19-80; 19-29; 18-76; 17-42; 15-179; 14-77.

Opinion:

         A part-time attorney judge asks if he/she may serve on a county executive’s “working group of various stakeholders to review procedures and policies at the county police academy.” In addition to the judge, the group will include “county and local police professionals, members of the county’s human rights commission and police board, African American clergy and justice activists.” The group would “review training given to new recruits and current officers at the county police academy to ensure departments avoid implicit racism or any biased behavior.”

        A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must uphold the judiciary’s independence (see 22 NYCRR 100.1; see also 22 NYCRR 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control”]) and thus must not convey or permit others to convey the impression they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). Significantly, a judge also must avoid bias and prejudice in performing judicial duties (see 22 NYCRR 100.3[B][4]) and discharging his/her administrative responsibilities (see 22 NYCRR 100.3[C][1]). The prohibition includes “words or conduct” manifesting “bias or prejudice based upon age, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, national origin, disability, marital status or socioeconomic status” (22 NYCRR 100.3[B][4]). The judge must also “require” similar conduct of “staff, court officials and others subject to the judge’s direction and control” (22 NYCRR 100.3[B][4]; 100.3[C][2]; cf. 22 NYCRR 100.2[D] [judge must not hold membership in an organization that practices “invidious discrimination”]). A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), but a judge may generally “speak, write, lecture, teach and participate in extra-judicial activities subject to the requirements of this Part” (22 NYCRR 100.4[B]). For example, a judge’s extra-judicial activities must be compatible with judicial office and must not “cast reasonable doubt on the judge’s capacity to act impartially as a judge” (22 NYCRR 100.4[A][1]) or “interfere with the proper performance of judicial duties” (22 NYCRR 100.4[A][3]). Subject to similar limits, a part-time judge may accept appointment to a government position concerned with issues of fact or policy unrelated to the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][2][a]).¹ However, no judge may accept appointment or employment as a peace or police officer as defined by CPL 1.20 (see 22 NYCRR 100.4[C][2][b]).

         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 14-77 [citation omitted]). Thus, a position without any formal police officer or peace officer status may nonetheless be incompatible with judicial office, because of its “apparent connection with law enforcement functions” (Opinion 20-04 [citation omitted]). Whether a particular extra-judicial activity is “too closely aligned with law enforcement interests ... must be viewed from a reasonable layperson’s perspective” (id. [citation and internal quotation marks omitted]). For example, we said a judge may volunteer for a not-for-profit organization devoted to honoring fallen police officers, firefighters, and emergency medical personnel, “where the judge’s proposed volunteer work will relate only to firefighters and medical personnel, and not to police officers” (Opinion 14-77).

         Nonetheless, we have also said a part-time judge may also be a full-time academic SUNY employee administering and overseeing a SUNY-hosted police cadet academy, where his/her “responsibilities include scheduling the academy’s classes and instructors, providing academic testing, managing the academy’s budget, and compiling training records” (Opinion 17-42). A part-time judge may also serve as an unpaid instructor at a police academy in another county, even where it is “hosted by a police entity, rather than an academic institution” (Opinion 18-76). Such service is, of course, subject to “applicable limits on judicial speech and conduct” and thus the judge must be cautious “to avoid the perception that he/she is providing partisan advice on litigation strategy or tactics” and must not “manifest a predisposition to decide a particular type or class of case a certain way” (id.).

         Moreover, in light of a judge’s “ethical obligations to avoid and curb bias and prejudice,” we have said a judge may attend a training session on local anti-harassment policies and grievance mechanism, where the program is “educational and preventive” and unlikely to be seen as a law enforcement program (Opinion 19-80). Indeed, we have said a judge may give a presentation on recognizing and reducing racial prejudice, even if the audience is one-sided (see Opinion 15-179 [noting “it may benefit the public interest when an organization involved in litigating one side of an issue is exposed to the kind of broad perspective a judge can offer”]). In so doing, the judge “must avoid commenting on pending/impending matters” and must “promote public confidence in the judiciary's impartiality and integrity and not suggest a predisposition on any particular matter” (id.).

         Finally, we note a judge “must not insert him/herself unnecessarily into the center of matters of substantial, local controversy” (Opinion 19-29), as this may undermine public confidence in the judge’s impartiality and independence.

         Putting these lines of opinions together, we conclude this specific working group, as described, is permissible for a part-time judge. The group itself includes a wide and balanced range of participants and is unlikely to be seen as one-sided. Even more significantly, the judge will not be advising the county executive about specific policies a police department should adopt concerning, for example, choke-holds or other controversial law enforcement techniques. Rather, the judge will “review training” at the county police academy and advise the county executive and/or the police academy about how to reduce or eliminate implicit racial and other bias.

         We do note, as a significant backdrop to this opinion, that multiple high-profile, racially-charged incidents of police violence have resulted in ongoing or reasonably foreseeable litigation and intense local and national controversy. This working group is one of many initiatives seeking to respond to various aspects of the situation. Significantly, this particular working group, as described, will not comment on or discuss those incidents, nor seek to facilitate dialogue between activists and police, nor recommend changes to current police force deployments, strategies, policies, procedures, and practices. Rather, it will review training at the county police academy, with the goal of helping reduce and eliminate implicit bias. As described, we believe the judge’s proposed involvement is analogous to the conduct permitted in Opinions 18-76, 17-42, and 15-179. The judge must, however, be mindful of the need to maintain public confidence in his/her impartiality and must take particular care not to comment on any pending or impending case in the United States or its territories (see 22 NYCRR 100.3[B][8]).

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¹ Part-time judges are exempt from some restrictions applicable to full-time judges (see 22 NYCRR 100.6[B][1]).