Opinion 24-115
September 12, 2024
Digest: On these facts, a full-time judge must decline to serve as a “core investigator” in a university’s health equity research program.
Rules: 22 NYCRR 100.2; 100.2(A), (C); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(1); 100.4(C)(3)(b)(i); Opinions 23-145; 23-92; 20-70; 19-106; 19-29; 16-152; 11-97.
Opinion:
The inquiring full-time judge has been invited to join a private university’s program to research issues of health equity. The program’s mission “specifically focus[es] on the impact of racism and other societal inequities on health and development” and strives to “ensure the translation of knowledge into policy and action that have positive effects on community health equity.” The judge is invited to be a “core investigator,” who will be expected to participate and contribute to “at least one . . . manuscript and one . . . grant application each year” and consult with various university-sponsored clinical programs. Participants have access to “seed grant funding” and will collaborate with a team of university personnel in research on safe and healthy housing; prevention of mental health and substance use disorders; prevention of gun violence; prevention of re-incarceration; and prevention and management of chronic disease. The program expects core investigators to further its mission through interaction with, among others, “community leaders and members of city government.” Participants are recognized publicly as “core investigators” and are encouraged to acknowledge their affiliation publicly in their “professional signature.” The judge asks if it is permissible to accept the invitation.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a manner that promotes public confidence in the judiciary’s integrity and independence (see 22 NYCRR 100.2[A]). Judicial duties must “take precedence” over all the judge’s other activities (22 NYCRR 100.3[A]). A judge may engage in extra-judicial activities that do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, do not detract from the dignity of judicial office, do not interfere with the proper performance of judicial duties, and are compatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). A full-time judge must not appear at a public hearing before an executive or legislative body or official except on matters concerning the law, the legal system, or the administration of justice (see 22 NYCRR 100.4[C][1]). A judge may not “personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][3][b][i]) and may not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]).
This invitation implicates several ethical concerns. First, the judge would be involved in research and advocacy for significantly controversial public policy issues, including re-incarceration, safe housing, and gun violence. The judge, as a core investigator, would work with the research team to facilitate “mutually beneficial relationships” with, among other groups, “community leaders and members of city government.” We have consistently cautioned that judges should refrain from activities that “would unnecessarily and deliberately insert the judge directly into the center of controversy” (Opinion 19-29; see also e.g. Opinions 23-92 [concluding judge may not speak at neighborhood groups about root causes of violence and potential solutions]; 19-106 [advising judge may not write or join article or editorial on controversial movement of American troops abroad]). Thus, for example, where a non-partisan town Grange engages in advocacy and lobbying with local governments concerning local laws, policies, and regulations, we have said a town judge must not assume leadership roles in the entity or otherwise publicly associate him/herself with organizational positions on controversial issues (see Opinion 20-70). Here, by signing onto the role of “core investigator,” the judge would become emmeshed in advocacy with “community leaders and members of the city government” on the enumerated—and controversial—public policy matters.
Second, the access to “seed grant funding” and the requirement to participate in “at least one” grant application every year create an appearance that the judge would be involved in fund-raising. Clearly, a judge may not personally solicit funds and may not use, or allow others to use, judicial prestige for fund-raising (see Opinions 23-145 [cautioning that judge may not appear as author of any fund-raising letter or grant application]; 11-97 [advising judge must take reasonable steps to ensure judicial position is not exploited by others for fund-raising or promotional purposes]).
Third, the invitation “encourages” the judge to “acknowledge” his/her affiliation with the program by detailing the affiliation in the judge’s “professional signature.” This encouragement appears to be designed to merge the prestige of judicial office with the program’s goals and objectives. In that respect, publicly adopting the “affiliation” in any judicial signature or other identification would appear to constitute lending the prestige of the office to this private effort (see 22 NYCRR 100.2[C]). As we have previously advised, a judge must avoid even the appearance that the prestige of judicial office is being used to advance the private interest of an organization (see Opinions 16-152; 11-97).
On these facts, we conclude that the judge’s proposed participation would impermissibly lend judicial prestige to influence public policy in matters not directly related to the law, the legal system, or the administration of justice, and would create an appearance of soliciting funds and engaging in advocacy with public officials on such topics. It is also foreseeable that the judge could become entangled in matters of substantial and controversial public policy.
Accordingly, the judge should decline the university’s invitation to participate in its health equity research program.