Opinion 24-77

May 9, 2024

Digest:    A judge has no ethical obligation to take any action concerning another judge’s conduct where the facts do not clearly indicate a substantial likelihood that the other judge has committed a substantial violation of the Rules Governing Judicial Conduct.

Rules:      Town Law § 20(1)(a); 22 NYCRR 100.2; 100.2(A); 100.3(D)(1); Opinions 21-183; 18-66; 18-10; 17-32; 15-157; 08-146.

Opinion:

          The inquiring town justice and his/her co-judge recently met privately with their court clerks and a town human resources representative concerning one court clerk’s complaints of bullying and harassment by the other court clerk.  The co-judge later told the inquirer that he/she disclosed the situation to a town board member, in the hope that the town board member “could be helpful in resolving the complaint.”  The inquiring judge instructed the co-judge not to discuss personnel matters with “anyone outside the court,” and now asks if he/she must report the co-judge to the Commission on Judicial Conduct.

          A judge 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]).  Therefore, a judge who receives information indicating a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules Governing Judicial Conduct shall take “appropriate action” (22 NYCRR 100.3[D][1]).

          In general, a judge who learns of another judge’s potential misconduct must determine for him/herself whether the two-prong test is met and, if so, what action is “appropriate” under the circumstances (see e.g. Opinion 08-146).  But in some instances, we can provide guidance on certain aspects of the analysis based on the facts set forth in the inquiry (see e.g. Opinion 18-66 [“The issue is whether the information he/she has received satisfies the initial threshold: is there a substantial likelihood that the co-judge has committed a substantial violation of the Rules Governing Judicial Conduct.  As described in the inquiry, it does not.”]).

          Here, while the “substantial likelihood” prong appears to be satisfied, in that the inquiring judge learned about the co-judge’s actions directly from the co-judge, the facts provided to us do not clearly reveal any “substantial violation” of the Rules Governing Judicial Conduct. 

          As we have observed, “the town and village justice courts, which are funded by the local municipality, have a different statutory scheme than the state-paid courts” (Opinion 21-183).  Significantly, town court clerks are town employees who are paid by the town, although they are “employed and discharged from employment only upon the advice and consent of the town justice or justices” (Town Law § 20[1][a]).  We have said a town justice may permit the town court clerks to certify that they will abide by the town ethics code, even if it provides for discipline or removal of the court clerk in the manner provided by law (see Opinion 17-32).

          Given that the town court clerks at issue are salaried town employees, we do not believe it necessarily constitutes judicial misconduct for a town justice to speak with a town board member about the court clerk’s allegations of workplace bullying and harassment, absent a statute or other clear legal mandate requiring the co-judge to refrain from doing so (cf. Opinion 15-157 [no obligation to report attorney for speaking to non-party witness during recess, “absent a court directive or ethical rule requiring the attorneys to refrain” from such communications]). 

          Accordingly, on the facts presented, the two-prong test is not met, and the inquiring judge need not take any further action

(see e.g. Opinions 18-66; 18-10).  Nonetheless, it remains entirely within the inquiring judge’s discretion whether to take, or not take, any further action concerning the co-judge’s conduct (see id.).