PERSONAL & CONFIDENTIAL
Opinion 22-01
February 22, 2022
Dear : This responds to your inquiry (22-01) asking if it is ethically permissible to offer training and consultation to local city, town, and village governments regarding appropriate responses to so-called “1st and 2nd Amendment audits.” In general, these “audits” are conducted by individuals who make videos of their encounters (often provoked by them) with public officials. If the individuals perceive any violations of their constitutional rights, the videos may be posted on social media and provide the basis for a lawsuit. Also, these “auditors” may attend government body meetings that are open to the public, and claim violation of their First Amendment rights if they are denied an opportunity to speak, all while video recording the proceedings. The training would not be offered to law enforcement, but only to civilian government employees, and would not be offered within the county in which you preside.
A part-time judge may accept private employment or 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 the judge’s (22 NYCRR 100.6[B][4]; see e.g. Opinions 01-87 [may serve as an investigator for a public defender’s office in another county]; 95-81 [may serve as a public defender in another county]; 17-136 [may accept employment as an advisor to a consulting firm retained by a municipality other than one in which the judge sits]; 16-72 [may advise local government officials and employees about operational issues in local justice court, not the court in which the judge presides]).
Here, we observe that the proposed training and consultations will be performed outside of the county in which you preside, do not include law enforcement or prosecutorial functions, and are not likely to involve persons or agencies that regularly appear before you (see Opinion 20-123; 10-63).
Thus, we conclude that the proposed training and consultation work is ethically permissible, as it is not incompatible with judicial office and is unlikely to conflict or interfere with the proper performance of your judicial duties (22 NYCRR 100.6[B][4]; Opinion 10-63; 97-126).
If a case involving claims or charges related to First or Second Amendment “audits” comes before the town court, you must carefully consider whether you can be fair and impartial in the matter, and you should not preside unless you are fully satisfied you have no personal bias or prejudice against such “auditors” (22 NYCRR 100.3[E][1][a][i]).
Enclosed for your convenience are Opinions 20-123; 17-136; 16-72; 10-163; 01-87; 95-81 which address this issue.
Very truly yours,
Margaret T. Walsh
Supreme Court Justice
Committee Co-Chair
Lillian Wan
Supreme Court Justice
Committee Co-Chair