Opinion 22-06

January 27, 2022

Digest:         A full-time judge may volunteer as a rescue diver for a county’s water rescue/scuba team, where the dive team members are not county employees and are not concerned with issues of fact or policy. However, the judge’s judicial duties must take precedence over this extra-judicial activity.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(2)(a); Opinions 21-124; 16-179.

Opinion:

         A new full-time judge asks if they may continue to be a member of the county’s water rescue/scuba team which consists of volunteers from various emergency response agencies as well as several local scuba dive masters. Team members are volunteers and not county employees, although their dive teamwork is covered by the county’s insurance policy. The judge and other volunteer rescue divers do not participate in fund-raisers. The judge holds no officer position on the team and there is no indication that the judge has any role in setting policy for the dive team.

          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 their capacity to act impartially as a judge, (2) detract from dignity of judicial office, or (3) interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). In addition, a full-time judge must 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 (see 22 NYCRR 100.4[C][2][a]).

         We have said a full-time judge may serve on a volunteer emergency medical technician service (see Opinion 16-179) or serve as a “fire officer” or “trustee” for a not-for-profit volunteer fire department, provided the position does not confer peace officer or police officer status, does not involve investigative responsibilities or working with law enforcement, and does not involve the judge with fund-raising (see Opinion 21-124). Here, the position involves one novel factor not present in these prior opinions, specifically, appointment of a full-time judge to a governmental entity. In our view, merely volunteering as a rescue diver on a county’s water rescue/scuba team does not involve consideration of any “issues of fact or policy” and therefore is not prohibited by Section 100.4(C)(2)(a).

         Accordingly, we conclude this judge may volunteer as a rescue diver for a county water rescue/scuba team, where the dive team members are not county employees and are not concerned with issues of fact or policy. However, the judge’s judicial duties must take precedence over this extra-judicial activity (see 22 NYCRR 100.3[A]).