Opinion 22-189
February 2, 2023
Digest: A part-time judge may participate in (1) a county or local task force formed as part of the New York State Climate Smart Communities program and (2) their municipality’s strategic investment committee.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.4(C)(3)(a)(i); 100.5(A)(1); 100.6(B)(1); Opinions 22-54; 19-147; 19-68; 07-155/98-31; 05-03; 01-63; 99-74.
Opinion:
A part-time town justice asks if they may serve on (1) local and county-level climate smart communities task forces, formed as part of a state program to address climate change; and (2) their town’s strategic investment committee.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time judge generally may serve as an officer or director of a not-for-profit civic or charitable organization, provided the entity is not likely to “be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][i]; 100.6[B][1]) and further provided such service will not cast reasonable doubt on their capacity to act impartially as a judge, will not interfere with the proper performance of judicial duties, and is not otherwise incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). A judge must not “directly or indirectly engage in political activity” except as expressly permitted (see 22 NYCRR 100.5[A][1]). Subject to these and other limitations, a part-time judge generally may accept appointment to a governmental committee, commission, or other governmental position (see 22 NYCRR 100.4[C][2][a]; 100.6[B][1]).
1. The Climate Smart Communities Task Forces
As explained on the program’s website, New York’s climate smart program “helps local governments take action to reduce greenhouse gas emissions and adapt to a changing climate” (https://climatesmart.ny.gov). The program offers free technical assistance, grants and rebates to participating municipalities. Under the program, local municipalities establish task forces to promote and support climate mitigation and adaptation in the community. These task forces act as advisory boards or steering committees that advise and collaborate with the local governments to establish plans, programs, and activities as part of the state’s certification program.
Unlike full-time judges, a part-time judge may serve on a governmental commission or committee 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] [emphasis added]; 100.6[B][1]). Nevertheless, a part-time judge’s service on such governmental committees is not permitted when it involves the judge in unduly partisan issues or matters of substantial local controversy (see e.g. Opinions 99-74 [town water advisory committee’s recommendations likely to be controversial, according to the inquiring judge]; 07-155/98-31 [participation in charter review commission is “virtually certain to involve the judge ‘in partisan political issues or on matters of great public controversy that are likely to raise reasonable questions about a judge’s ability to be fair and impartial’”]). Conversely, where the part-time judge’s participation on a governmental committee is not likely to involve such partisan or controversial issues, it is generally permissible – even in the same municipality where the judge presides (see Opinions 22-54 [village traffic and safety committee]; 19-68 [town’s ad hoc committee to establish a process to determine which properties may be sold to another governmental agency]).
Here, we conclude the judge’s participation in the climate smart communities task forces is permissible. As described, each task force is advisory with no legislative function or authority and is not likely to come before the town court. Nor does it appear likely to involve the judge in partisan political issues or matters of great public controversy. Accordingly, as long as the judge’s involvement does not interfere with the judge’s judicial duties, we conclude the judge may participate.
2. The Town’s Strategic Investment Committee
As described, the town’s strategic investment committee meets to consider “a plan to invest up to $500,000 in making positive changes for [the town’s] future and then to make recommendations to our Town Board based on our work.” It is not a taxing authority and does not engage in fund-raising.
In Opinion 19-147, we opined that a part-time judge may serve on a city’s local tourism board, whose function was to “take all reasonable steps” to promote the city by using city funds designated for this purpose, provided the judge does not solicit funds or use the prestige of the office for that purpose. We have found other similar activities ethically permissible, where no fund-raising is involved (see e.g. Opinions 05-03 [loan committee for a local economic development agency, whose purpose is to approve or deny applications from local businesses for interest free loans]; 01-63 [board of local not-for-profit development corporation chartered for the purpose of creating a park, where project does not involve fund-raising]).
We find the town’s strategic investment committee analogous to these prior opinions, and we also note that the town’s strategic investment committee is advisory in nature, like the climate smart task forces addressed above. Where, as here, the proposed service does not appear likely to involve the judge in partisan political issues or matters of great public controversy, we conclude that a part-time town justice may serve on their town’s strategic investment committee, provided the position does not interfere with the judge’s judicial duties.