December 10, 2020
Digest: A town justice may respond to an inquiry from the town board and/or town supervisor concerning the performance of a town employee who has appeared before the judge for several years. The judge may comment on matters within the judge’s personal knowledge and observation, which may include their opinion about the employee’s ability to apply the law, knowledge of the law, and overall quality of work.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(1); Opinions 14-33; 11-116; 11-16; 08-211; 03-51; 88-166; 88-10.
The town board and/or town supervisor has asked the inquiring town justice to comment on the performance of the town’s dog control officer. The dog control officer is a part-time town employee who issues appearance tickets to residents with respect to alleged violations and regularly appears in the town court on such matters. Town officials have received complaints about the employee’s performance and are considering terminating the employee for cause. The inquiring justice has formed an opinion of the employee’s knowledge of the law and the quality of their work, based on the judge’s professional interactions with the employee over several years, and thus asks if it is permissible to share these views in response to the town’s request. The judge notes the court has routinely had to dismiss cases brought by the dog control officer, regardless of the possible merits of the case, due to significant procedural and/or jurisdictional failures.
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]). Therefore, a judge shall not lend the prestige of judicial office to advance any private interests and shall not testify voluntarily as a character witness (see 22 NYCRR 100.2[C]).
While judges with relevant personal knowledge may provide letters of reference in the context of an application for employment or for admission to an educational institution (see e.g. Opinion 88-10), and may also support an individual’s initial application for admission to the bar (see e.g. Opinion 88-166), they generally may not volunteer recommendations or opinions about individuals to governmental agencies or legislative bodies in other contexts (see e.g. Opinions 11-16; 14-33; 08-211; 22 NYCRR 100.2[C]). However, we have said they may provide such opinions in response to a direct request from the responsible governmental agency or body (see Opinion 03-51). Indeed, “a judge may honor a request received from an appropriate agency, court or official for the judge’s views in the same manner as the judge would honor a subpoena” (see Opinion 11-16). The distinction is important, as voluntarily offering opinions about an individual who is the subject of a governmental body’s deliberations may raise concerns about improperly lending the prestige of judicial office to advance private interests (see e.g. Opinion 08-211). Conversely, replying to the governmental body’s request for such information avoids any appearance of improper intervention by the judge.
Here, the judge’s opinion of the town dog control officer’s performance has been solicited by town officials with responsibility for hiring and firing of town employees. As it appears the inquiring judge has personal knowledge of the dog control officer’s performance, we believe the judge may respond. The judge may comment on matters within the judge’s personal knowledge and observation, which may include their opinion about the employee’s ability to apply the law, knowledge of the law, and overall quality of work.
We also note that judges may address a legislative body on matters concerning the law, the legal system and the administration of justice (see 22 NYCRR 100.4[C]; Opinion 11-116). As described, the dog control officer has apparently been unable, over several years, to file the proper papers in the town court so that the judge can rule on the merits of these cases. Thus, it would appear that the town justice holds opinions as to this employee’s abilities which, if accurate, are impacting the administration of justice. We believe this further underscores and supports the ethical propriety of the town justice responding to the town’s inquiry about the dog control officer’s performance and abilities (see Opinion 11-116 [“if the judges conclude that the prosecutor’s conduct ... affects the administration of justice, they may disclose such facts concerning the prosecutor’s performance to the town board,” though they must not “volunteer any recommendation about how the town board should exercise its appointment power”]).