Opinion 99-103

September 14, 1999

NOTE: The Chief Judge’s rules concerning dual employment of nonjudicial court employees now appear at 22 NYCRR 50.3.  For guidance on Part 50 (formerly Part 25), court personnel may consult the Office of Court Administration’s Nonjudicial Ethics Helpline (888-283-8442).

Digest:         Service by a Family Court Hearing Examiner as an arbitrator in Small Claims Court is not prohibited under the Rules Governing Judicial Conduct.

Rule:            22 NYCRR 25.37; 100.4(F); 100.6(A); Opinion 92-73 (Vol. IX).

Opinion:

         A Family Court Hearing Examiner asks whether serving "as a Small Claims Arbitrator after working hours" is permissible.

         Initially, we note that Family Court Hearing Examiners perform judicial functions within the judicial system and therefore are obligated to comply with the Rules Governing Judicial Conduct "in the performance of their judicial functions and otherwise shall so far as practical and appropriate use such rules as guides to their conduct." 22 NYCRR 100.6(A). We also note that a full-time judge may not "act as an arbitrator ... in a private capacity . . ." In Opinion 92-73 (Vol. IX), the Committee stated that a Family Court Hearing Examiner could not serve as an arbitrator with a "private firm" even if such employment was after working hours. 22 NYCRR 100.4(F). But service as an arbitrator in Small Claims Court is not service in a "private capacity." Consequently, there is nothing in the Rules Governing Judicial Conduct prohibiting such activity.

         However, the inquirer is an employee of the Unified Court System. Whether the consent of the inquirer's superiors, including the Chief Administrative Judge is required under section 25.37 of the Rules of the Chief Judge which deals with dual compensated employment, or under any other administrative policy, are not questions to be answered by the Committee. But, since the proposed employment is within the court system itself, the inquirer might be well-advised to consider obtaining the approval of his or her superiors and, if necessary, the Chief Administrative Judge.