Opinion 22-140
October 27, 2022
Digest: A part-time judge may serve as a volunteer ombudsman under the New York State Long Term Care Ombudsman Program, but must disqualify in any case involving the program or its participants.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.6(B)(1); 100.6(B)(4); Opinions 21-43; 19-103; 17-66; 16-104; 16-87; 14-44; 13-121; 06-132; 06-64; 06-09; 02-43; 91-35.
Opinion:
A part-time town justice asks if it is ethically permissible to serve as a volunteer ombudsman in the New York State Long Term Care Ombudsman Program. The judge indicates that an ombudsman helps nursing home residents to understand their rights and to resolve complaints that may adversely affect their health, safety, or welfare. As described, the ombudsman's role is akin to that of a mediator in helping the parties understand the situation and reach a voluntary resolution. Although complaints may relate to possible abuse, neglect, and exploitation, an ombudsman does not gather evidence or determine whether a law or regulation was violated; nor does an ombudsman propose or enforce a penalty. The judge does not expect that the ombudsman's duties would be the subject of substantial controversy or result in litigation.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary's integrity and impartiality (see 22 NYCRR 100.2[A]). A judge's judicial duties "take precedence over all the judge's other activities" (22 NYCRR 100.3[A]). Thus, a judge must conduct all the judge's extra-judicial activities so that they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]).
Part-time judges are not subject to the blanket prohibition on serving as arbitrators or mediators in a private capacity or on accepting appointment to a governmental committee or commission or other governmental position unrelated to the law, the legal system, and the administration of justice (see generally 22 NYCRR 100.6[B][1] [a part-time judge "is not required to comply" with seven specified sections, including 100.4(C)(3)(a)(ii) and 100.4(F)]). Indeed, they may generally accept "public employment in a federal, state or municipal department or agency," although the employment must not "conflict or interfere with the proper performance of the judge's duties" (22 NYCRR 100.6[B][4]).
When analyzing a part-time judge's proposed extra-judicial activities in the public sector, our prior opinions highlight a few recurring areas of concern. For example, we have said that extra-judicial activities which "raise serious separation-of-powers concerns" are ethically impermissible (Opinion 16-104; see Opinion 17-66 [citing prior opinions]). Thus, we said a part-time quasi-judicial official may not serve on the statewide Joint Commission on Public Ethics (JCOPE) because such service may raise separation-of-powers concerns to the extent JCOPE has "the power to investigate and discipline ethics violations in the other branches of government" (Opinion 17-66). Along the same lines, we advised that a town judge may not serve as the town's workplace ombudsman, as it could create the impression that the judge is part of the town's executive branch and could involve the judge in matters of substantial local controversy (see Opinion 16-87).
We raised an overlapping set of concerns in our prior opinions about a part-time judge's service on a municipal board of ethics. We said such service is permissible where the board's sole authority is to issue advisory opinions and propose revisions to the municipality's code of ethics (see Opinions 06-132; 91-35), but not where the board is empowered to hold hearings concerning complaints against members of the municipal government and recommend sanctions (see Opinion 06-09; 02-43). Similarly, we said a part-time quasi-judicial official may not serve on a town ethics board which has both advisory responsibilities and "the power and duty to dispose of sworn complaints, conduct investigations and hearings, recommend disciplinary action, and assess penalties" (Opinion 19-103). We concluded such functions would inevitably involve the judge in matters of substantial public controversy (see Opinion 17-66). Moreover, investigation and prosecution of any ethics complaints would place the judge "in an adversarial role as a governmental official which … is incompatible with judicial office" (Opinion 02-43; see also Opinion 21-43 ["serving on a committee with investigative and disciplinary/enforcement functions ... would reflect on the judge's impartiality, undermine the judiciary's integrity and independence, interfere with the judge's official duties, or place the judge in an adversarial role"]).
Finally, we turn to the judge's comparison of the ombudsman role to that of a mediator. As noted above, part-time judges may act as arbitrators or mediators in a private capacity, subject to certain limitations (see Opinion 13-121). However, disqualification is thereafter required if the parties to an arbitration or mediation conducted by the judge subsequently appear before the judge in a case involving the same parties and facts (see id.). Further, if the judge must disqualify him/herself so frequently that service as a volunteer mediator interferes with performance of judicial duties, or involves the judge in ongoing controversies and litigation, the judge must not continue to serve as a volunteer mediator (see 22 NYCRR 100.4[A][3]; Opinion 06-64).
We conclude the activities of the volunteer ombudsman, as described, do not implicate separation-of-powers concerns, do not involve an adversarial or disciplinary role, and are unlikely to enmesh the judge in substantial local controversy. Moreover, the issues the judge would handle as volunteer ombudsman are unlikely to come before the town court. Accordingly, this judge may serve as a volunteer ombudsman under the New York State Long Term Care Ombudsman Program. However, the judge is disqualified from presiding over a case if a resident or other party/entity associated with the program appears in the judge's court during the volunteer work and for two years after the judge's service as volunteer ombudsman ends (cf. Opinion 14-44).