Opinion 21-70

April 12, 2021

Digest:         A full-time judge may accept an appointment to serve on the search committee for the dean of a law school that is financially supported primarily by New York State or one of its political subdivisions, even if the prior dean’s tenure or departure was controversial.

Rules:          NY Const art 6 § 20(b)(1); 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(2)(a); Opinions 20-169; 19-29; 07-170; 07-164; 02-63; 98-08; 94-104; 90-90.

Opinion:

         A full-time judge asks if it is permissible to accept an appointment to serve on the search committee for the dean of a law school that is financially supported primarily by New York State or one of its political subdivisions. We understand that the search committee is advisory in nature, in that it will make recommendation(s) for the appointment, but does not itself possess any appointment power. The circumstances of the prior dean’s departure appear to be controversial.

         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 his/her capacity to act impartially as a judge, (2) detract from the dignity of judicial office, or interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). Of particular note here, a full-time judge “shall 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]), but “may, however, represent a country, state or locality on ceremonial occasions or in connection with historical, educational or cultural activities” (id.).

         In our view, a full-time judge who volunteers on a search committee for the dean 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 view is consistent with our prior opinions saying that a full-time judge may serve on a search committee for a school superintendent for a public school district (see Opinions 98-08; 90-90), although we recognize that the search committee for a dean may be far more high-profile.

         Moreover, as this search committee is assessing candidates for the position of a law school dean, the governmental appointment is also permissible because it is “concerned with issues of fact or policy” relating to “the improvement of the law, the legal system, or the administration of justice” (22 NYCRR 100.4[C][2][a]; cf. Opinion 07-170 [full-time judge may meet with law school deans and others concerning the need to increase diversity within the legal profession]).

         We note this judge is also subject to the restrictions of NY Const art 6 § 20(b)(1), which provides:

A judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of a county court, judge of the surrogate’s court, judge of the family court or judge of a court for the city of New York established pursuant to section fifteen of this article who is elected or appointed after the effective date of this article may not: (1) hold any other public office or trust except an office in relation to the administration of the courts, member of a constitutional convention or member of the armed forces of the United States or of the state of New York in which latter event the legislature may enact such legislation as it deems appropriate to provide for a temporary judge or justice to serve during the period of the absence of such judge or justice in the armed forces....

In this regard, we note that serving on a law school dean search committee is necessarily a temporary, ad hoc appointment which is primarily advisory in nature. We therefore believe it is not a prohibited “public office or trust” within the meaning of our prior opinions (compare Opinions 07-164 [advisory board for community college]; 02-63 [advisory board for public high school] with Opinions 20-169 [trustee for community college]; 94-104 [trustee for community college]; cf. NY Const art 6 § 20[b][1]).

         Finally, in light of our advice that judges “must not insert [themselves] unnecessarily into the center of matters of substantial, local controversy” (e.g. Opinion 19-29), we consider the controversy concerning the prior dean’s tenure and/or departure. Naturally, the controversy may result in more media attention than usual to the choice of the school’s next dean. However, we see no reason why the search committee itself should be controversial. Indeed, if anything, we expect the search committee’s members will strive to identify applicants who, in their view, are less likely to encounter similar controversies in the future if appointed as dean.

         Accordingly, we believe this judge may serve on the search committee.