Opinion 21-84

April 29, 2021

Digest:       A part-time lawyer judge may serve as a non-partisan hearing officer for the state board of elections to conduct civil enforcement hearings.

Rules:        Election Law § 3-104; 9 NYCRR 6218; 22 NYCRR 100.2; 100.2(A); 100.4(F); 100.5(A)(1); 100.6(B)(1); 100.6(B)(4); Opinions 11-15; 08-42; 07-215; 02-68; 00-14; 98-74; 98-41; 95-72; 89-40; 88-148.

Opinion:

         A part-time lawyer judge asks if they may serve as a hearing officer for the state board of elections to conduct civil enforcement hearings under Election Law § 3-104 and 9 NYCRR 6218. The judge says it is a non-partisan position and the responsibilities do not include opining on a candidate’s qualifications. Hearing officers under these sections must be attorneys in good standing.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]). A part-time judge may accept public employment in a federal, state, or municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of judicial duties (see 22 NYCRR 100.6[B][4]). While full-time judges are specifically prohibited from acting as arbitrators or mediators “in a private capacity” (22 NYCRR 100.4[F]), part-time judges are generally permitted to do so (see 22 NYCRR 100.6[B][1]).

         We have advised that part-time judges may perform the functions of hearing officers in a variety of circumstances, where it would not conflict or interfere with proper performance of the judge’s judicial duties (see e.g. Opinions 07-215 [part-time town justice may accept position as hearing officer for local city housing authority]; 00-14 [part-time town justice may accept appointment to serve as hearing officer in a disciplinary proceeding involving a firefighter]; 98-41 [part-time town justice may preside as a hearing officer in a disciplinary hearing against a village police officer of a village located outside the town where the justice presides]; 95-72 [part-time city court judge may serve as hearing officer in a student disciplinary matter]; 89-40 [town justice may serve as a hearing officer in a disciplinary proceeding brought by a county against a county employee pursuant to section 75 of the Civil Service Law]; 88-148 [town justice may serve as hearing officer for county health department]). Likewise, a part-time Judicial Hearing Officer (JHO) may also serve as hearing officer for a municipality’s disciplinary hearing involving a police officer if the JHO is not on the JHO panel for the municipality’s court and does not preside in criminal or other police related matters (see Opinion 11-15).

         Nor is a part-time judge prohibited from accepting employment in matters involving elections where, as here, the judge’s role is clearly that of a lawyer acting as an impartial hearing officer. We have advised that a part-time lawyer judge may serve as the legal advisor to the board of directors of a political party (see Opinion 98-74). We said such activity is permissible so long as the judge ensures that “an attorney-client relationship exists and that the judge’s actions are clearly identifiable as those of an attorney representing a client, as contrasted with actions pursued solely for the purpose of participating in policy-making decisions of the organization” (id.). Similarly, we advised that a part-time lawyer judge may serve as counsel of record for a candidate for election to public office, albeit only if the judge can avoid involvement in any aspect of the candidate’s political campaign and is fairly compensated for any services provided (see Opinions 02-68; 08-42).

         As this judge is part-time, the subject matter of the proceedings under the Election Law is not likely to conflict with the inquirer’s judicial office, the position and appointment are non-partisan and the inquiring judge is being compensated as an attorney for the service, we see no ethical incompatibility with this part-time lawyer judge simultaneously serving as a hearing officer under Election Law § 3-104 and 9 NYCRR 6218.