Opinion 21-74

April 29, 2021

Digest:       Absent a legal requirement to do so, a town justice must not sign an acknowledgment form attached to the town’s sexual harassment policy, where (a) the acknowledgment contains an indirect pledge by the judge to be bound by the policy’s terms, (b) the town’s policy sets forth local procedures and reporting requirements and purports to subject all town managers, supervisors and employees to local discipline, and (c) the Unified Court System has adopted a sexual harassment policy applicable to “all judges,” which conflicts with the town’s policy.

Rules:        22 NYCRR 100.1; 100.2(A); 100.3(B)(1); 100.3(B)(4); 100.3(C)(1)-(2); Opinions 19-80; 18-161; 16-55; NY St Off of Ct Admin Sexual Harassment Policy and Procedure Rev. 11-17.

Opinion:

         A town justice asks if they may sign an acknowledgment form attached to the town’s sexual harassment policy which states, in relevant part, “I hereby acknowledge that I received my annual Sexual Harassment Prevention Training for the Town of _____ and understand my role in preventing Sexual Harassment in the workplace.” The policy identifies “managers” and “supervisors” as designated reporters of any harassment complaint they receive or any harassment they observe, and states that they are “subject to discipline” for engaging in sexually harassing conduct, failing to report suspected sexual harassment, or otherwise knowingly allowing sexual harassment to continue. The policy does not specifically mention town justices or otherwise explain whether the town considers them to be managers, supervisors or employees subject to its terms.

         A judge must uphold the judiciary’s integrity, impartiality, and independence (see 22 NYCRR 100.1; 100.2[A]). A judge also must “respect and comply with the law” (22 NYCRR 100.2[A]) and “be faithful to the law and maintain professional competence in it” (22 NYCRR 100.3[B][1]). A judge must avoid bias and prejudice in performing judicial duties (see 22 NYCRR 100.3[B][4]) and in discharging administrative responsibilities (see 22 NYCRR 100.3[C][1]). The prohibition includes “words or conduct” manifesting “bias or prejudice based upon … sex, sexual orientation, gender identity, [or] gender expression” in the performance of judicial duties (22 NYCRR 100.3[B][4]). The judge must hold “staff, court officials and others subject to the judge’s direction and control” to the same standard (22 NYCRR 100.3[B][4]; 100.3[C][2]).

         Notwithstanding that the town’s policy does not mention town justices, the acknowledgment form calls for the judge to affirm an “understanding” of “my role” in preventing sexual harassment in the workplace after receiving a copy of the town’s policy and completing the training. Town and village justices, though paid by their local municipalities, are part of the state’s judiciary, an independent branch of government, which has adopted a policy that “applies to all judges and court employees” (NY St Off of Ct Admin Sexual Harassment Policy and Procedure Rev. 11-17, at 1).¹ Presumptively, its application and authority with respect to judges and justices of the Unified Court System prevails over any similar policy implemented by a municipal government entity.

         In Opinion 19-80 we found no impropriety in a village justice simply and truthfully acknowledging receipt of the village’s sexual harassment policy. There, the acknowledgment contained “no direct or indirect pledge to be bound by the policy, nor any other comments or representations” (id.). As such, it did not “raise serious separation of powers concerns [or] infringe [upon] the judiciary’s independence” (Opinion 16-55) or interfere or conflict with the Rules Governing Judicial Conduct (Opinion 19-80).

         If the judge was asked to solely acknowledge receipt of the subject policy, no conflict would exist. Here, however, the phrase “and understand my role in preventing Sexual Harassment in the workplace” amounts to a statement of compliance to the policy to which it is attached. It clearly implies the judge will submit to and abide by the town’s policy by virtue of the plain meaning the phrase imparts. That obligation would impinge upon the judge’s ability to remain independent (see Opinion 18-161) and would place the judge in conflict with the judiciary’s own formally adopted policy. Moreover, to the extent that signing the acknowledgment form could create an appearance that the town justice is a “manager” or “supervisor” who may be “subject to discipline” by the town for violations of the town’s policy, we note again the cautions in Opinion 19-80 (citations, brackets, and quotation marks omitted):

Town and village justices must proceed very cautiously when their municipality proposes to subject them to corrective actions or discipline at the local level. Indeed, a town or village justice’s voluntary submission to the authority of the local governing body for discipline and/or removal, contrary to the constitutional scheme, would raise serious separation-of-powers concerns, and likewise infringe on the judiciary’s independence. It could also create an impression the municipality is in a special position to influence the court – not merely through due exercise of its budgetary powers, but also through an ad hoc disciplinary process as the municipality or its agents interpret a policy they themselves have promulgated.

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¹ Accessible from the court system’s website, including on the home page of the Office of Diversity and Inclusion, www.nycourts.gov/careers/diversity.