Opinion 22-77

May 5, 2022

Digest:         A part-time judge may serve as an inspector of election in a school board election but may not serve in the capacity of chairperson, poll clerk or assistant poll clerk.

Rules:          Education Law §§ 2607, 2609; 22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); 100.4(C)(2)(a); 100.5(A)(1); 100.6(B)(1); 100.6(B)(4); Opinions 20-149; 20-129.

Opinion:

         The inquiring part-time judge asks if they may serve as an election official for a local school board election. In this election, eligible voters will determine the outcome of a proposed school budget and will elect candidates to the school board. The judge indicates that the role of the election official is to determine if a voter lives in the school district and to inspect proof of identity of any prospective voter. Further, the judge indicates that the position is non-partisan and uncompensated.

         A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), 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]). A judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]) and must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]). Unlike a full-time judge, a part-time judge may accept 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 duties (see 22 NYCRR 100.6[B][4]) and may accept “appointment to a governmental committee or other governmental position” (22 NYCRR 100.4[C][2][a]), subject to generally applicable limitations on judicial speech and conduct.

         We note, initially, that the role of school board election inspector appears to be a non-political and non-partisan governmental appointment by the board of education (see Education Law § 2607 [board of education “shall appoint” at least three “inspectors of election” from the “qualified voters residing” in the election district]).¹ The statute provides that the school board election inspectors “shall, before opening the polls in the election district for which they are appointed, organize by electing one of their number as chairperson and one as poll clerk” (id. [emphasis added]). In addition, the chairperson “may also appoint one of the inspectors as an assistant poll clerk” (id. [emphasis added]).

         Education Law § 2609 sets forth a specific role for the chairperson if a prospective voter is challenged:

Any qualified voter of a city school district may challenge the right of a person to vote at the time when he requests a ballot. All persons named upon the applicable register as having been challenged prior to the day of the election shall also be challenged before they are given ballots to vote. The chairman of the board of inspectors shall administer to each person so challenged the following oath: [language omitted]. If the person challenged so swears or affirms, he shall be permitted to vote at such election; but if he shall refuse to so swear or affirm, he shall not be given a ballot or be permitted to vote.

A person who willfully swears or affirms falsely as to his right to vote at such election after his right to vote has been challenged is guilty of perjury and may be punished in the manner provided by law for the punishment of such crime. A person who is not qualified to vote at such election who shall vote thereat, although not challenged, shall be guilty of a misdemeanor, punishable by a fine of not less than twenty-five dollars, or by imprisonment for not less than thirty days, or by both such fine and imprisonment.

         While no special role is set forth for the poll clerk and assistant poll clerk, they seem well positioned to step forward if the chairperson is absent or unable to perform these duties. Accordingly, the chairperson, poll clerk, and assistant poll clerk could foreseeably become involved in a subsequent legal action in which one or more of them could be called upon as fact witnesses in a misdemeanor charge.

         We conclude the roles and responsibilities of the chairperson; poll clerk and assistant poll clerk are incompatible with the obligations of a part-time judge. However, serving in the role of an election inspector is permissible for a part-time judge, provided that the judge does not assume responsibility as the chairperson, poll clerk or assistant poll clerk.

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¹ We thus distinguish the paid employment as an election clerk with the board of elections under the Election Law, where the appointments appear to be bi-partisan (rather than non-political) in that they are “equally divided between the major political parties” (Opinion 20-129). While the governmental appointment contemplated here would be impermissible for a full-time judge or quasi-judicial official under Section 100.4(C)(2)(a) (see Opinions 20-149; 20-129), this provision does not apply to part-time judges (see 22 NYCRR 100.6[B][1]).