Opinion 95-31

March 9, 1995

Digest:         A Family Court Hearing Examiner may serve as a board member of a school that deals with troubled youths even though some may be placed in the school by Family Court judges who preside in the same court as the Hearing Examiner. However, the Hearing Examiner must recuse himself/herself from all matters which involve the school, the youths or their families and if that requires frequent recusal the Hearing      Examiner should decline to serve as a board member.

Rule:            22 NYCRR 100.5(b)

Opinion:

         A Family Court Hearing Examiner has been asked to serve as a board member of a school for troubled youths. Some of those youths may be placed in the school by Family Court judges who preside in the same Family Court where the inquiring Hearing Examiner sits.

         Hearing Examiners are subject to the Rules of Judicial Conduct and the Rules of the Chief Administrator of the Courts. 22 NYCRR 100.5(b) provides that:

“A judge may serve as an officer, director, trustee or nonlegal advisor of an educational, religious, charitable, fraternal or civic organization not conducted for the economic or political advantage of its members... .”

         Therefore, we perceive no per se ethical bar to such board membership provided the Hearing Examiner does not participate in the solicitation of funds for the school. However the same Rule (22 NYCRR 100.5[b]) also states that:

“A judge may participate in civil and charitable activities that do not ... interfere with the performance of judicial duties.”

         There are instances, how frequently or infrequently we are not informed, where the Department of Social Services petitions Family Court in support proceedings commenced against parents of children who have been placed in the school. Those cases could be assigned to the Hearing Examiner who agrees that he/she would recuse himself/herself in any such matters. While the school is not a party in those proceedings, if such petitions are assigned to the Hearing Examiner with some regularity which require rather frequent recusal, we would recommend against the Hearing Examiner accepting an appointment to membership on the school board.