Opinion 22-110

June 30, 2022

Digest:         A part-time judge may not serve on a selection committee that is organized by the sheriff’s office for the purpose of interviewing and selecting current corrections officers and supervisors for promotion opportunities.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.6(B)(4); Opinions 21-68; 20-121; 16-38; 01-37.

Opinion:

         A part-time town justice asks if they may serve on a selection committee for the purpose of interviewing and selecting current corrections officers and supervisors at the sheriff’s office for promotion to sergeants, lieutenants and other supervisory positions within the county jail. The judge has relevant experience from the private sector and further notes that the selection committee will also include the undersheriff, the corrections captain, and a member of a county agency.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Further, a judge must not lend the prestige of judicial office to advance any private interests of the judge or others; nor may a judge convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). Subject to these and other limitations, a part-time judge may engage in private employment that is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]).

         While we have not previously addressed this specific question, we find several relevant principles in the rules and prior opinions. First, we have said it is “improper for a judge to serve on a county legislature’s task force, where the judge’s proposed involvement seems to immerse the judge in helping the probation department implement its programs or internal policies,” where “the legislature has not mandated judicial branch participation” (Opinion 20-121). A core concern was that the judge could be seen as “helping the [probation] department implement its programs” (id.), thus potentially compromising public confidence in the judiciary’s integrity and impartiality by creating an impression that the judge is aligned with law enforcement interests.

         Second, we have advised that a judge “should not write letters of recommendation on behalf of police officers seeking promotions where it appears likely that the officers will be witnesses, or otherwise involved, in cases before the judge” (Opinion 01-37). Although Opinion 01-37 was subsequently modified with respect to certain police officers who are unlikely to appear before the judge (see Opinions 16-38; 21-68),¹ it remains in effect with respect to other officers who may appear before the judge. Clearly, serving on a sheriff’s selection committee would immerse the judge more deeply into the promotion process than simply writing a letter in support of an officer’s promotion application.

         Third, and relatedly, if a judge serves as a member of a selection committee for internal promotions of corrections officers or other sworn employees, it could appear that the judge is lending the prestige of judicial office to advance the interests of particular law enforcement officers.

         We therefore conclude that a judge may not serve on a selection committee that is organized by the sheriff’s office for the purpose of interviewing and selecting current corrections officers and supervisors for promotion opportunities.

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¹ As we explained in Opinion 16-38 (emphasis added), “[t]o the extent Opinion 01-37 prohibits a judge from writing a reference letter for a police officer who will not appear before the judge, merely because that police officer’s ‘associates or superiors’ are likely to appear before the judge, it is hereby modified to be consistent with this opinion.” More specifically, we said a judge “in a large urban criminal court” may write a reference letter for a police officer seeking to be promoted, where the judge’s “personal knowledge of the officer ... predates the judge’s assumption of judicial office” and “the judge can easily recuse” when this officer appears (id.). Similarly, we said a judge “in a large urban court” may write a letter of reference for a sheriff’s deputy supervisor seeking to be promoted, based on the judge’s personal knowledge of the deputy, “where the deputy supervises others who provide court security and is thus unlikely to appear before the judge” (Opinion 21-68).