Opinion 21-129

September 9, 2021

Digest:         A full-time judge may serve on an ad hoc interview committee for a public school district for any position that is currently open.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(2)(a); Opinions 21-70; 18-71; 03-135; 98-08; 97-143.

Opinion:

         A full-time judge asks if it is permissible to serve on an ad hoc interview committee when convened for an open position (such as teacher, coach, or administrator) for the public school district in which the judge lives and the judge’s children attend. The interview committee is advisory in nature, in that it will make recommendation(s) for the appointment but does not itself possess any appointment power.

         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]). A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]). Accordingly, any extra-judicial activities must be compatible with judicial office and must not (1) cast doubt on their capacity to act impartially as a judge, (2) detract from the dignity of judicial office, or (3) interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). Of particular note here, while a full-time judge is generally barred from accepting “appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice” (see 22 NYCRR 100.4[C][2][a]), a full-time judge is expressly permitted to “represent a country, state or locality on ceremonial occasions or in connection with historical, educational or cultural activities” (see id.).

         A full-time judge who volunteers on an interview committee for an administrator of a state-supported school falls within the exception for permissible governmental appointments in Section 100.4(C)(2)(a), as they are clearly representing the “state or locality” in connection with “educational ... activities.” This is consistent with prior opinions, where we determined that there is no ethical barrier for a full-time judge to serve on the advisory committee for the selection of a public school superintendent (see Opinions 98-08; 97-143) or for the dean of a law school that is financially supported primarily by New York State or one of its political subdivisions (see Opinion 21-70).¹

         Moreover, we see no reason to distinguish between serving on an ad hoc interview committee for school administrators (such as deans, superintendents, principals, department chairs, and the like) and serving on a similar committee for public school teachers or athletic coaches.

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¹ We note that being appointed to an ad hoc interview committee places a judge in a temporary advisory role as needed to help a local school district or other state-supported educational entity fill a particular vacancy. It is thus entirely distinct from serving on a local school board, typically an elective position for a set term which grapples with “political issues and matters of public controversy” and is thus impermissible for both full- and part-time judges (Opinion 03-135; accord e.g. Opinion 18-71).