Opinion 23-68
June 15, 2023
Digest: A part-time judge may serve on a public hospital board, notwithstanding the board’s statutorily delineated inspection, investigative, and reporting functions.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.4(C)(3)(a)(i); 100.6(B)(1); Opinions 21-55; 21-43; 20-45; 19-38; 18-77; 16-58; 15-129; 15-02; 07-184; 06-09; 04-21; 04-09; 03-138; 02-128; 02-43; 01-72; 01-08; 00-76; 00-18; 99-80; 98-35; 92-91; 90-01.
Opinion:
A part-time judge asks if it is ethically permissible to serve on the board of a public hospital that carries out specific functions delegated by statute regarding the oversight of the hospital. These functions include conducting inspections of the hospital and providing reports to the Commissioner of Hospitals and the Governor, investigating allegations of misconduct involving key members/employees of the hospital and issuing subpoenas for that purpose, as well as reporting findings and making recommendations following investigations. Appointments to the board are made by the Governor with the advice and consent of the Senate.
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 judge may engage in extra-judicial activities that do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). Unlike a full-time judge, a part-time judge may accept “appointment to a governmental committee 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” (22 NYCRR 100.4[C][2][a]; 100.6[B][1]), subject to generally applicable limitations on judicial speech and conduct. However, a part-time judge may not serve as an officer, director, trustee or non-legal advisor “if it is likely that the organization (i) will be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][i]).[1]
We have often advised that judges may serve on the boards of non-profit hospitals and related entities (see e.g. Opinions 20-45; 04-09; 01-72; 00-76; 00-18; 98-35). However, this inquiry raises a novel question: Whether the investigatory and reporting functions of a public hospital board are compatible with part-time judicial office.
Participation in investigative duties may raise ethical concerns, as this may place a judge in an adversarial role with employees in other branches of government, may immerse the judge unnecessarily in public controversy, or could create an appearance that the judge is impermissibly involved with or commenting on pending or impending litigation (see e.g. Opinions 02-43 [part-time judge may not serve on a county ethics board that hears complaints with respect to county employees and recommends sanctions as it places “the judge in an adversarial role as a governmental official which we believe is incompatible with judicial office”]; 21-55 [judge may not serve on a non-profit entity’s internal committee to investigate sexual harassment claims against another member of the entity, given the possibility of civil or criminal litigation]; 02-128 [part-time judge may not serve on a Catholic bishop’s community review board that recommends what measures, if any, should be taken against priests who are the subject of child abuse allegations]; 21-43 [part-time judge may not serve on the board of a local human rights commission, which is involved in investigating, conciliating, and adjudicating employment, housing, public accommodation and credit discrimination claims]; 19-38 [part-time judge may not serve as a volunteer fire investigator in the same county, as the public could perceive these duties as cooperatively aligned in interest with law enforcement and prosecutor]). For example, in Opinion 06-09, we said a judicial hearing officer may not serve on a municipal board of ethics in the same county, where the board is authorized to conduct investigations and hearings concerning alleged ethics violations by officers and employees of the municipality, because it will “inevitably involve the judge in matters of public controversy, and the imposition of sanctions could lead to court action in the county where the judge serves.”
However, our prior opinions have not drawn an absolute prohibition on such matters for part-time judges. For example, we have said that a part-time judge may serve on an attorney grievance committee (see Opinions 15-129; 02-128), may serve as chief financial officer/treasurer for an airport authority, with oversight of accounting and financial affairs (see Opinion 18-77), may conduct background investigations for the U.S. Office of Personnel Management (see Opinion 16-58), and may even be employed as a private investigator for attorneys, subject to certain limitations (see Opinions 99-80; 90-01).[2]
In the medical context, we have said that a part-time judge may serve on a hospital’s ethics committee that “offers advice regarding the ethical implications of policies, procedures, and treatment decisions and coordinates educational programs for the hospital staff” (Opinion 92-91).[3] Likewise, in Opinion 15-02, we considered a part-time judge’s disqualification obligations based on their outside employment as a physician, with “oversight of the hospital’s phlebotomy services and regulatory compliance.” While we concluded that the judge must disqualify “in DWI cases involving blood drawn at [the] hospital,” we raised no question about the underlying compatibility of the judge’s responsibilities for overseeing compliance.
Under the circumstances presented, we conclude that the inquiring part-time judge may serve on a public hospital board that performs inspection, investigative, and reporting functions in accordance with statutory directives, provided the hospital is unlikely to be engaged in proceedings that ordinarily would come before the judge.
[1] Part-time judges need not comply with subparagraph (ii) of this section (see 22 NYCRR 100.6[B][1]).
[2] Conversely, a full-time judge may not serve on an attorney grievance committee (see e.g. Opinions 07-184; 04-21) or as a member of hospital’s compliance and audit committee, with “the responsibility of ensuring that the organization’s accounting procedures comply with the law” (Opinion 03-138).
[3] A full-time judge, by contrast, may not serve on the business ethics committee of a not-for-profit hospital, whether “as chair or as a committee member” (Opinion 01-08).