Opinion 21-62

April 29, 2021

Digest:       A full-time judge may not offer their services to a congressperson to help establish, and thereafter serve on, a non-partisan service academy review board, which will (a) review the applications of those seeking the congressperson’s nomination to one of the service academies, and (b) make recommendations to the congressperson as to who should receive a nomination and in what order.

Rules:        22 NYCRR 100.2; 100.2(A); 100.4(A)(1); 100.4(A)(3); 100.4(C)(2)(a); Opinions 91-91; 89-132.

Opinion:

         A full-time judge asks if they may offer their services to a congressperson to help establish, and thereafter serve on, a non-partisan service academy review board, which will (a) review the applications of young men and women seeking the congressperson’s nomination to one of the service academies, and (b) make recommendations as to who should receive a nomination and in what order. The judge notes that the “very nature of these committees is to provide an independent, non-political means for applicants to the Services Academies to seek a nomination.”

         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]). Among other limitations, a judge’s extra-judicial activities must be compatible with judicial office (see 22 NYCRR 100.4[A][3]) and must not “cast reasonable doubt on the judge’s capacity to act impartially as a judge” (22 NYCRR 100.4[A][1]). Moreover, a full-time judge must “not accept 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” (22 NYCRR 100.4[C][2][a]).

         We have advised that a judge may not serve on a congressperson’s advisory committee which recommends candidates for appointment to military academies (see Opinions 89-132; 91-91). A full-time judge is barred because it is a governmental committee concerned with issues of fact or policy unrelated to improvement of the law, the legal system or the administration of justice (see Opinion 89-132; 22 NYCRR 100.4[C][2][a]). Moreover, even though such committees are intended to be non-political and/or non-partisan, we said it was impermissible for any judge to serve because members of the congressperson’s committee “may be perceived as participating in a political or quasi-political function” (Opinions 91-91; 89-132).

         As it is impermissible to serve on the committee, we believe it is equally inappropriate to be involved in helping organize the committee. Accordingly, we conclude a full-time judge may not offer their services to a congressperson to help establish, and thereafter serve on, a non-partisan service academy review board, which will (a) review the applications of those seeking the congressperson’s nomination to one of the service academies, and (b) make recommendations to the congressperson as to who should receive a nomination and in what order. In our view, it makes no difference ethically whether the congressional district in question covers the judge’s residence and/or the judge’s place of business.