January 30, 2020
Digest: A judge need not prohibit his/her court attorney from serving on the Joint Commission on Public Ethics, provided such service does not interfere with the court attorney’s official responsibilities and any required permission has been obtained under Part 50 of the Chief Judge’s Rules.
Rules: 22 NYCRR 50; 100.2; 100.2(A); 100.3(C)(2); Opinions 17-66; 14-129(A); 11-90; 08-105; 05-38, 01-35; 00-52; 99-10; 97-69.
A full-time judge asks if his/her court attorney may serve as an appointed
Commissioner of the statewide Joint Commission on Public Ethics (JCOPE). The court
attorney has also sought approval from JCOPE and from an administrative judge.1 As
described in Opinion 17-66 (citations and footnotes omitted):
JCOPE is a statutorily created commission whose members are appointed by the governor, lieutenant governor and certain legislative leaders. Its website describes JCOPE as an “independent agency” with “oversight over both the [e]xecutive and [l]egislative [b]ranches.” Among other things, JCOPE oversees executive and legislative branch financial disclosures and state lobbyists’ filings; provides training and advice on lobbying and ethics laws for lobbyists and executive and legislative branch officers and employees; and is vested with certain investigative and enforcement powers. In particular, JCOPE “investigates potential violations of the state’s ethics laws, the ‘Little Hatch Act,’ and the Lobbying Act as they apply to state legislators, candidates for the [l]egislature and legislative employees, as well as the four statewide elected officials, candidates for those offices, executive branch state employees, certain political party chairs, and lobbyists and their clients.” JCOPE further has the power to conduct hearings and impose civil penalties for violations by executive branch officers and employees as well as lobbyists and clients. In addition, JCOPE proposes rules and legislation pertaining to its functions and responsibilities, such as amendments to lobbying laws and disclosure laws.
The court attorney’s term would be an uncompensated five-year appointment, with eleven meetings a year. He/she would attend most of these meetings electronically and would not use any court system resources for his/her JCOPE work.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge also must require his/her staff to observe the standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C]). Nevertheless, the limitations on the extrajudicial conduct of a judge do not automatically apply to the judge’s court attorney or law clerk (see e.g. Opinion 08-105).
We previously said a judge or quasi-judicial official may not serve as a member of JCOPE, as that organization’s determinations and interpretations have generated significant public controversy and litigation (see Opinion 17-66). As we explained, a quasi-judicial official’s service on JCOPE may raise separation-of-powers concerns to the extent that JCOPE has the power to investigate and discipline ethics violations in other branches of government (id.). Significantly, we noted that while a full-time judge or quasi-judicial official may not serve as a member of JCOPE, a part-time judge or JHO may accept employment as a JCOPE hearing officer (see Opinion 14-129[A]). We reasoned that service as a JCOPE hearing officer in a particular case involves performing quasi-judicial duties involving a specific individual, considering the facts and law applicable to him/her, and does not involve the broad policy-setting functions of membership in JCOPE itself (id.).
Here, by contrast, it is the judge’s court attorney – rather than a judge or quasi-judicial official - who wishes to serve as JCOPE Commissioner. Where, as here, the court attorney has no quasi-judicial title or responsibilities, we believe Part 100 does not preclude him/her from serving as a JCOPE Commissioner. Indeed, we have repeatedly recognized that a court attorney or law clerk may be able to engage in certain activities that would be impermissible for a judge, subject to appropriate administrative permission under Part 50 where required (see Opinions 11-90 [law clerk may serve as a village trustee]; 05-38 [law clerk may run for and serve on the County Legislature]; 01-35 [law clerk may serve on a town council]; 00-52 [law clerk may serve as appointed member of a local community board]; 99-10 and 97-69 [law clerk may serve on a public school board member]).
We are aware that JCOPE’s work includes investigations and enforcement proceedings. While this is impermissible for a judge or quasi-judicial official, we have advised that Part 100 does not preclude a judge’s law clerk from serving an ethics board that has investigatory and prosecutorial powers (see Opinion 08-105).
The extrajudicial activities of court attorneys and other nonjudicial court personnel are subject to the Rules Governing Conduct of Nonjudicial Court Employees (see 22 NYCRR 50). Therefore, if the court attorney has not already done so, he/she should be instructed to contact the Unified Court System’s Office of Court Administration for guidance as to any issues that may arise under such Rules, including information on any administrative permissions that may be required (Contact: Nonjudicial Ethics Helpline: 1-888-28-ETHIC).
Accordingly, we conclude the inquiring judge may permit his/her court attorney to serve as a JCOPE Commissioner, provided such service does not interfere with the court attorney’s court responsibilities and the court attorney has obtained any necessary permission pursuant to Part 50. Finally, should any matter involving JCOPE come before the judge, the court attorney must be completely insulated from any involvement in the matter.
1 JCOPE’s counsel concluded the positions are compatible but suggested recusal in certain circumstances.