Opinion 90-63

June 7, 1990

Digest:         A part-time judge may not run for election to or serve on a school board.

Rules:          22 NYCRR 1OO.5(h), 100.7.

Opinion:

         A part-time judge who also is a member of a local school board requests formal reconsideration of the Committee's prior opinions which hold that it is ethically inappropriate for a part-time judge to run for election to or to sit on a school board. (See Opinion 88-142; Joint Opinion 89-157/90-7.)

         The judge serves in a rural community and contends that board of education elections in that community traditionally have been non-partisan and low key, and that the school board position is uncontroversial. The judge further inquires whether, if the Committee adheres to its prior decisions, the judge may continue to serve on the board until the expiration of the current term if no controversy arises, in which case the judge would resign.

         The members of a school board are charged with the overall management and supervision of the school district. They are elected by the citizens of the district and are answerable to these citizens. A school district, through its board of education, has many of the powers, duties and responsibilities of other political subdivisions, and the board and its members are inextricably related to the body politic, although not necessarily in a traditional partisan sense. Governing a school district may involve significant controversy that is traditional, healthy and inherent in a democratic system.

         A school board adopts substantial budgets, sometimes larger than the budgets of other political subdivisions, which usually are subject to voter approval, and which may require a certain amount of lobbying. The school district, through its board, is a significant taxing authority. A district may engage in large capital construction projects involving millions of dollars, which may cause local community friction. Under the Local Finance Law, a board of education has extensive bonding authority, some of which is subject to citizen referendum. Difficult collective bargaining agreements with teachers and other district employees are common, and may result in strikes or other job actions. Controversy may arise in teacher or other employee discipline, and in curriculum development, particularly involving such issues as sex and health education, AIDS, unorthodox text books, or religious observance. However small or rural particular school districts might be, some of these issues may arise before the school board, igniting the fires of democratic controversy.

         Judges must forego certain significant rights and privileges, including the right to participate in political matters, [22 NYCRR 100.7], in order to maintain actual and perceived neutrality and objectivity. Serving on a school board is different from serving on a board of a charitable, fraternal or religious organization, where controversies are internal and do not involve the public political process. Consequently, as determined in our previous decisions, a part-time judge may not run for election for, or serve on a rural or urban school board.

         The suggestion has been made that this Opinion may be inconsistent with Opinion 89-72, wherein the Committee held that a member of a village board could serve also as a village justice. However, that issue is not before the Committee at this time.

         The Committee addresses the ethical implications of judicial conduct only, not the legalities involved. The Committee recognizes that it may be perfectly legal for part-time judges to serve as members of school boards, but often the requirements of judicial ethics go beyond considerations of statutory or common-law incompatibility, and may make it ethically inappropriate for a judge to hold another position, although the two positions are not legally incompatible.

         Advisory Committee on Judicial Ethics Joint Opinion 89-157, 90-7 and Opinion 88-142 are reaffirmed.