Opinion 22-02
January 27, 2022
Digest: (1) The Committee cannot address legal/administrative issues relating to the court system’s vaccination policies, such as whether a judge may delay vaccination beyond the deadline after denial of their exemption request and use various categories of leave during the judge’s chosen delay period. (2) Where a judge has been warned that court administrators will deem the judge “unfit for service” if the judge does not comply with the court system’s vaccination policies, the judge may communicate their opposition to this position, provided that such communication comports with the dignity of judicial office and eschews personal attacks on government officials.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(C)(1); 100.4(C)(1); Opinions 21-168; 20-136; 19-120; 19-34; 18-45; 05-06; Nat’l Fed’n of Ind. Bus. v Dep’t of Lab., Occupational Safety & Health Admin., 595 US —, 142 S Ct 661 (2022); Dr.A v Hochul, 595 US —, 142 S Ct 552 (2021); Andre-Rodney v Hochul, 2021 WL 5050067 (ND NY, Nov. 1, 2021, No. 1:21-cv-1053); Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO v New York State (Unified Ct. Sys.), 73 Misc 3d 874 (Sup Ct 2021); New York City Mun. Labor Comm. v City of New York, 73 Misc 3d 621 (Sup Ct 2021).
Opinion:
All judges and nonjudicial court employees were directed to submit proof of COVID-19 vaccination or request an exemption by September 27, 2021. Court administrators denied the inquiring judge’s exemption request and directed the judge to be vaccinated by a new deadline in January. The judge, who was then in quarantine due to a family member’s illness, countered with an offer to undergo vaccination several months later (after a date chosen by the judge) and to use a combination of remote work and/or various leaves to remain away from the courthouse during the delay period. When the judge failed to submit proof of vaccination by the January deadline, court administrators advised the judge of this fact and warned the judge that a confirmation letter would be sent indicating that the judge is “unfit for service.” The judge now asks if it is ethically permissible for the judge to (1) delay vaccination beyond the deadline after denial of their exemption request, (2) work remotely or use various categories of leave to avoid returning to the courthouse during the judge’s chosen delay period, and (3) express disagreement with court administrators’ proposed designation of the judge as “unfit for service” if the judge does not comply with the court system’s vaccination policies.
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 “should cooperate with other judges and court officials in the administration of court business” (22 NYCRR 100.3[C][1]). While a full-time judge may not ordinarily appear at a public hearing before an executive or legislative body or public official, they may do so “on matters concerning the law, the legal system or the administration of justice or ... when acting pro se in a matter involving the judge or the judge’s interests” (22 NYCRR 100.4[C][1]).
The issue of COVID-19 vaccination mandates has been and continues to be litigated at both the federal and state levels (see e.g. Nat’l Fed’n of Ind. Bus. v Dep’t of Lab., Occupational Safety & Health Admin., 595 US —, 142 S Ct 661 [2022]; Dr.A v Hochul, 595 US —, 142 S Ct 552 [2021]; Andre-Rodney v Hochul, 2021 WL 5050067 [ND NY, Nov. 1, 2021, No. 1:21-cv-1053]; Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO v New York State [Unified Ct. Sys.], 73 Misc 3d 874 [Sup Ct 2021]; New York City Mun. Labor Comm. v City of New York, 73 Misc 3d 621 [Sup Ct 2021]). Whether this judge has the right to delay vaccination, and to work remotely or charge various leaves during the judge’s chosen delay period, raise legal and/or administrative questions beyond our purview.
In effect, we conclude the judge’s proposed work-arounds to the court system’s vaccination policies do not raise any ethical issues, but only issues of law and/or administrative policy (see Opinions 21-168; 05-06 [whether or not a full-time judge may “teach a course at a law school ... during regularly scheduled court hours, with time expended to be charged to annual leave, are administrative questions to be determined by the appropriate Administrative Judge”]). Of course, to the extent such issues are unsettled, they may be raised and addressed by persons with standing in the appropriate legal venue and/or through the appellate process (see Opinion 18-45). We have advised that the judicial ethics rules “do not preclude a judge from exercising the same rights to protect or advance [their] direct, personal interests as other similarly situated individuals who are not judges” (Opinion 19-34 [citations omitted]).
With respect to the judge’s final question, we believe the judge may communicate their disagreement with court administrators’ proposed designation of the judge as “unfit for service” based on the judge’s vaccination status and/or non-compliance with the court system’s vaccination policies (see generally Opinion 19-120; cf. 22 NYCRR 100.4[C][1]). However, the judge’s communications “must comport with the dignity of judicial office and eschew personal attacks on government officials” (Opinion 20-136 [citations omitted]).