May 5, 2022
Digest: A part-time village justice: (1) may serve as chair of a village traffic and safety committee, where the committee’s role is strictly advisory concerning matters such as the location of signs and the judge’s involvement will not involve the judge in political issues or matters of great public controversy that are likely to raise reasonable questions about the judge’s ability to be fair and impartial; (2) may not serve on the board of the New York Bicycling Coalition, where the entity engages in advocacy and takes positions on issues of great public controversy; (3) may serve on the New York Coalition for Transportation Safety, where that entity focuses on educating the public and is not engaged in lobbying or involved in matters of great public controversy.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.4(C)(3)(a)(I); 100.5(A)(1); 100.6(B)(1); Opinions 21-161; 21-79; 20-81©; 20-70; 15-210/09-56; 15-77; 14-29; 09-70; 07-155/98-31; 01-64; 98-101; 88-150.
The inquirer has been asked to serve as a village justice. Before accepting the appointment, the inquirer asks if they would be able to continue as chair of the village’s traffic and safety committee and as a member of the board of two not-for-profit civic organizations, the New York Bicycling Coalition and the New York Coalition for Transportation Safety.
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 part-time judge generally may serve as an officer or director of a not-for-profit civic or charitable organization, provided the entity is not likely to “be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][a][I]; 100.6[B]) and further provided such service will not cast reasonable doubt on their capacity to act impartially as a judge, will not interfere with the proper performance of judicial duties, and is not otherwise incompatible with judicial office (see 22 NYCRR 100.4[A]-). A judge must not “directly or indirectly engage in political activity” except as expressly permitted (see 22 NYCRR 100.5[A]). Subject to these and other limitations, a part-time judge generally may accept appointment to a governmental committee, commission, or other governmental position (see 22 NYCRR 100.4[C][a]; 100.6[B]).
1. The Village Traffic and Safety Committee
The inquirer describes the village traffic and safety committee (TSC) as “a volunteer committee with no power to write legislation or independently make change in the Village.” It does not interact with the village court, but provides “advice and guidance” to the village trustees on “issues such as parking signs, road design, placement of stop signs etc.” Further, the TSC “allow[s] residents to participate in meetings on issues relating to traffic within the Village.” As an example, a village resident may attend a TSC meeting and request that a stop sign be placed at an intersection. The TSC will then discuss the matter and recommend to whichever village trustee is present whether the sign should be erected.1 The village board then considers the TSC’s recommendation in its own deliberations. In addition, the TSC also holds local events “such as bike to school day.”
Although full-time judges may not accept appointment to any governmental commission or committee unless that position concerns “the improvement of the law, the legal system, or the administration of justice,” that prohibition does not apply to part-time judges (see 22 NYCRR 100.4[C][a]). Nevertheless, a part-time judge’s service in a governmental position is not permitted when it involves the judge in unduly partisan issues or matters of substantial local controversy. In Opinion 07-155/98-31, for example, we reconsidered prior opinions concerning whether a judge, either part-time or full-time, could serve as a member of a charter review commission. We noted that a judge’s participation on such a commission was virtually certain to involve the judge “in partisan political issues or on matters of great public controversy that are likely to raise reasonable questions about a judge’s ability to be fair and impartial” (id.). We concluded that even a part-time judge could not serve on such a commission (id.; see also e.g. Opinion 99-74 [part-time judge should not sit on Town’s water advisory committee where inquirer expressly indicated that subject matter will become controversial]).
We have also advised that, even where a particular organization itself would not ordinarily come before the judge or engage in adversary proceedings in any court, a judge should not serve on the board of an organization where the judge’s involvement with that organization may still reflect adversely upon their impartiality or interfere with the performance of judicial duties (see Opinion 88-150). Thus, we advised that a judge who hears abuse and neglect cases should not serve on the board of directors of a county task force on child abuse and neglect, because the organization’s “public education function and its name alone” create a possible appearance of partiality or interference with the performance of judicial duties (id.). Similarly, we advised that a family court judge should not serve on the board of directors of a local advocacy organization involved in public lobbying concerning various family and children’s issues (see Opinion 01-64). We found it inappropriate “where issues championed by that organization are directly related to issues which the judge may well be called upon to address in his or her capacity” (id.).
As described, a village justice’s participation on the TSC does not raise these kinds of concerns. The mere fact that the committee’s name includes the word “traffic” does not, without more, compromise the judge’s actual or apparent neutrality in Vehicle and Traffic Law matters. The TSC’s role is limited to issues concerning traffic safety. It is strictly advisory, has no legislative or executive functions or authority, nor does it propose amendments to the village code or other statutes. Rather, its primary focus is on improvements of traffic safety in the village and the education of the citizenry. Given these limited and advisory functions, we do not think the judge’s participation would “effectively impair judicial independence [by] enmesh[ing] the judiciary in what is essentially a political undertaking” (Opinion 07-155/98-31 [internal citations omitted]). Nor does it appear likely to involve the judge in political issues or matters of great public controversy. Accordingly, we find this activity to be permissible for a part-time village justice, whether as a regular member or as chair of the TSC.
2. The New York Bicycling Coalition
According to its website, the New York Bicycling Coalition (NYBC) is a non-profit organization that “advocates for pro-bicycle and pro-pedestrian policies and funding at all levels of government; educates New Yorkers about bicycle safety and the benefits of bicycling; provides technical assistance and support to advocates and governmental agencies; and promotes tourism across the State.” The inquirer both “participate[s] in advocacy work and appears on behalf of this board to lobby for pro bike and pedestrian legislation and infrastructure changes” and “appears in media events on behalf of the board.” The inquirer notes that it may be possible to “change or limit” their role on the board, but would like to know to what extent they would be able to continue on assuming part-time judicial office.
It is well-settled that “a judge may maintain membership in a not-for-profit organization that engages in some activities clearly permissible for judges as well as some potentially controversial lobbying, advocacy and litigation activities” (Opinion 15-210/09-56). We advised that a judge may donate to such organizations and join as a regular member, with certain limitations (see e.g. Opinions 21-161 [reentry organization that works to influence legislation like bail reform]; 15-77 [Planned Parenthood]; 14-29 [“non-partisan feminist coalition” which advocates for and influences legislative and social policy affecting women and children]; 09-70 [Birthright]; 98-101 [Planned Parenthood and New York Civil Liberties Union]). However, a judge who joins such group may not be involved in its litigations, publicly associate him/herself with organizational positions on controversial issues, or assume leadership roles in the entity (see e.g. Opinions 21-161 [part-time judge]; 20-81[C] [part-time judge]; 20-70 [part-time judge]). We have repeatedly opined that taking a leadership role in such organizations may publicly associate the judge with the organization’s positions on matters of public controversy, in a way that simple membership does not (see e.g. Opinions 20-70; 14-29).
Here, the bicycling coalition engages in certain activities that are clearly permissible for judges, such as education about the benefits of cycling. However, the organization also engages in lobbying and advocacy with government concerning potentially controversial issues and legislation. We conclude that a village justice may not serve on the organization’s board of directors, nor can the judge otherwise lobby or appear in media events on behalf of the board. The judge may, however, maintain membership in the organization, subject to the limitations set forth above.
3. The New York Coalition for Transportation Safety
The New York Coalition for Transportation Safety (NYCTS) describes itself as a “[n]on-profit agency focused upon pedestrian, bicycle and traffic safety in New York City and New York State.” The organization receives grants from federal, state, local and private agencies to develop and conduct public information, safety and education campaigns such as bicycle, pedestrian and school bus safety programs, as well as programs for children with special needs. Neither the inquiry itself, nor the entity’s website, suggests that the NYCTS is likely to be involved in litigation in the village court, in legislative advocacy or lobbying, or in matters of substantial public controversy.
As the NYCTS’s primary focus is educational and the entity does not appear to engage in advocacy or legislative activity, we conclude that a village justice may serve on the board of this organization, subject to generally applicable limitations such as the prohibition on soliciting funds (see Opinions 21-79 [judge may serve on the board of a not-for-profit educational organization]).
1 There is usually a village trustee present at the meeting.