Opinion 24-114
September 12, 2024
Digest: City Court judges who are statutorily authorized to appoint city marshals in a judicial district may (1) organize and participate in an informational and/or training program to encourage applicants for city marshal positions, and (2) promote the program, subject to generally applicable prohibitions on judicial speech and conduct.
Rules: Uniform City Court Act § 105(b); 22 NYCRR Part 50; 100.2; 100.2(A); 100.6(A); Opinions 20-121; 16-85; 13-42; 12-181/12-186; 12-139; 09-151; 09-53; 06-178.
Opinion:
The inquiring City Court judge is statutorily authorized to appoint city court marshals in the jurisdiction.[1] The court’s judges and their court attorney would like to organize an “informational program and training program to increase the number of City Court Marshals in the judicial district.” The inquiring judge asks if it is ethically permissible to participate in such a program, “create and distribute” program announcements on electronic platforms, appear on a radio show to discuss it, and participate in the training program either online or in person. The judge also requests guidance on which specific electronic platforms may be used and in what manner, whether there are limits on the type of online presentation they may give, and who they may permit to access the presentation.
A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2), respect and comply with the law (see 22 NYCRR 100.2[A]), and always act to promote public confidence in the judiciary’s integrity and impartiality (see id.).
We have previously advised a judge not to “serve on a mayoral committee that would recruit and recommend individuals for appointment as City Marshals” (Opinion 06-178). After observing that city marshals hold peace officer status and collect fees from those who use their services (id.), we further noted:
The bulk of [city marshals’] duties are inextricably intertwined with the judicial system. They are often involved in litigation and other controversies arising from the performance of their duties, including court actions challenging the actions they take in performance of their duties, and other claims of malfeasance or nonfeasance.
We concluded that it would impair the public’s confidence in the integrity and impartiality of the judiciary if a city marshal’s conduct was adjudicated by a judge who had participated in the marshal’s recruitment, selection, and appointment (id.). More broadly, our advice reflected concerns about judicial independence and separation of powers (id.).
The present inquiry is distinguishable. In Opinion 06-178, the power to appoint city marshals rested with the mayor. Appointment power in the inquirer’s jurisdiction, by contrast, rests with the City Court judges; in effect, judicial participation in the selection and appointment process is statutorily mandated (see e.g. Opinions 20-121 [noting lack of mandate for judges to participate in county legislative task force]; 12-181/12-186 [distinguishing between statutory requirement to include judges on domestic violence review team and mere invitation, rather than mandate, to participate in STOP-DWI program]; 12-139 [judge may serve on alternatives to incarceration board as required by Executive Law]). On these facts, the inquirer may “respect and comply with the law” (22 NYCRR 100.2[A]) by exercising this power.
Since the inquirer and his/her co-judge are authorized by statute to appoint the city marshals, we conclude they may also organize and participate in an informational and/or training program aimed to increase interest in the position and promote those programs. Such promotion may include radio appearances, subject to generally applicable limitations on judicial speech and conduct (see Opinions 13-42 [judge may place newspaper advertisement inviting local not-for-profit organizations to accept court placements of defendants to serve community service sentences]; 09-151 [judge may represent not-for-profit organization at job fair to encourage members of marginalized community to take court officer exam]).
The inquirer’s open-ended questions concerning the selection and use of electronic platforms, as well as determining who should be able to access them, are “vague and subject to multiple factual variations” (Opinion 09-53; see also Opinion 16-85). We therefore cannot address them.
Finally, as relevant here, non-judicial court employees without quasi-judicial responsibilities are not subject to the Rules Governing Judicial Conduct (see 22 NYCRR 100.6[A]). Their conduct is instead governed by the Rules Governing Conduct of Nonjudicial Court Employees (see 22 NYCRR Part 50). Accordingly, the court attorney may contact the Office of Court Administration’s Nonjudicial Ethics Helpline at (888) 283-8442 for guidance on how Part 50 applies to his/her particular circumstances.
[1] Although the “enforcement officer of a city court shall be the sheriff of the county in which such court is located” (Uniform City Court Act § 105[b]), cities in which public officers “were authorized to designate the enforcement officer” prior to July 1, 1988, are permitted to continue the practice (id.). Such enforcement officers have “power to serve and execute the processes and mandates of the court” (id.).