September 24, 2019
This responds to your inquiry (19-103) asking whether you, a Judicial Hearing Officer, may serve as a member of a Town Board of Ethics. Pursuant to the Town Code, in addition to advisory responsibilities, the town ethics board has the power and duty to dispose of sworn complaints, conduct investigations and hearings, recommend disciplinary action, and assess penalties.
The Rules Governing Judicial Conduct apply to quasi-judicial positions, including Judicial Hearing Officers (see 22 NYCRR 100.6[A]). The Committee has previously advised that a JHO may not serve on a local municipality’s ethics board “where the board is authorized to conduct investigations and hearing concerning alleged ethics violations by officers and employees of the municipality” (Opinion 06-09). Among other issues, “such a role would inevitably involve … matters of public controversy” (Opinion 02-43). In addition, investigation and prosecution of any ethics complaints would place the JHO “in an adversarial role as a governmental official which … is incompatible with judicial office” (id.).
Enclosed, for your convenience, are Opinions 06-09; 02-43; and 01-49 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice (Ret.)
Appellate Div., First Dep’t
Hon. Margaret T. Walsh
Supreme Court Justice