Opinion 22-126

September 8, 2022

Digest:       An Alternative Dispute Resolution Coordinator who holds a court attorney-referee title may not engage in political activity, even if they do not currently perform quasi-judicial functions.

Rules:        22 NYCRR 50.1(III)(B); 50.2(c); 22 NYCRR 100.2; 100.2(A); 100.5(A)(1); 100.5(A)(1)(c), (e), (g), (i); 100.5(C); 100.6(A); Opinions 20-197; 18-09; 17-122; 17-70; 12-71; 07-198; 98-46; 91-80.

Opinion:

         The inquiring court attorney-referee serves as an Alternative Dispute Resolution (ADR) Coordinator whose duties are limited to ADR functions and are “exclusively administrative.” The inquirer has drafted decisions on motions assigned to judges, served as a mediator on occasion, conducted foreclosure status conferences and signed status conference sheets, and serves as a coordinator for the court’s attorney/client fee dispute program. The inquirer does not have any assigned matters or hearings as a court attorney-referee, and has not rendered any reports or determinations.¹ The ADR Coordinator asks if, on their personal time, they may engage in political activity such as attending political events/dinners, distributing campaign literature, poll watching, and making phone calls in support of specific candidates.

         As quasi-judicial officials, court attorney-referees must comply with the Rules Governing Judicial Conduct in performing their duties and otherwise must “so far as practical and appropriate” use the Rules to guide their conduct (22 NYCRR 100.6[A]). Like judges, they must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Like a sitting judge, a quasi-judicial official must not “directly or indirectly engage in any political activity” unless an exception applies (see 22 NYCRR 100.5[A][1]). For example, a judge or quasi-judicial official who is not in their window period must not attend political gatherings (22 NYCRR 100.5[A][1][g]); purchase tickets for politically sponsored functions (22 NYCRR 100.5[A][1][i]); publicly endorse or oppose any candidate for public office (see 22 NYCRR 100.5[A][1][e]); nor engage in partisan political activity (see 22 NYCRR 100.5[A][1][c]).

         A nonjudicial court employee without any quasi-judicial title or function generally may engage in political activity on their own time away from court premises (see 22 NYCRR 50.1[III][B]; Opinion 91-80), although members of a judge’s staff who are the judge’s personal appointees must also comply with Section 100.5(C) (see 22 NYCRR 50.2[c]; Opinion 12-71).²

         However, a “different result applies” when a court employee “has a quasi-judicial title or functions” (Opinion 17-122, fn 1 [emphasis added]; see also Opinion 20-197 [addressing principal court attorney who lacks a quasi-judicial title, but nonetheless performs quasi-judicial functions]). We have advised that quasi-judicial officials such as court attorney-referees are prohibited from engaging in political activity, except as permitted by the rules (see e.g. Opinions 17-70 [a court attorney-referee may join and participate in non-political events but may neither join nor attend events sponsored by a political organization]; 07-198 [a court attorney-referee may not write a letter in support of a candidate for election to a municipal water board]; 98-46 [a court attorney-referee may not serve as a delegate to a judicial nominating convention]).

         The inquiring ADR Coordinator holds the title of court attorney-referee but states that their duties are strictly administrative in nature. The inquirer does not expect to be assigned any quasi-judicial duties now or going forward. In our view, the current non-performance of quasi-judicial functions is not determinative (see Opinion 18-09 [a judicial hearing officer must not engage in political activities as long as the JHO designation has not been rescinded, even though an administrative judge has stated that the JHO will not be given any assignments in the current fiscal year]).

         Significantly, the inquirer is authorized to perform quasi-judicial functions by virtue of their title of court-attorney referee, even if they do not presently perform such functions. We therefore conclude that the inquirer is subject to the broad restrictions on political activity under the Rules Governing Judicial Conduct. Accordingly, the inquirer may not attend political events/dinners, distribute campaign literature, serve as a poll watcher, or make phone calls on behalf of candidates. This prohibition applies even outside of working hours and away from court premises.

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¹ The inquirer previously served as a SCAR hearing officer but will no longer be serving in that role.

² For guidance on issues arising under Part 50, court employees may contact the Nonjudicial Ethics Helpline (see http://inside-ucs.org/oca/ethics/index.shtml)