Opinion 23-224

February 1, 2024

Digest:  Although a part-time judge may not serve on a school board, he/she may accept appointment as a community representative to certain advisory committees established by the school board for the local school district:
(1) the judge may serve on the district-wide safety team, provided that its work focuses on policies and procedures to promote safety in the schools, and does not involve law enforcement or investigatory functions, and
(2) the judge may serve on a citizens finance committee which advises the superintendent and budget officer on annual budget development, capital improvement projects, and the like.

Rules:   22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.6(B)(1); Opinions 22-136; 22-54; 17-39; 15-20; 08-145; 07-52; 05-50; 02-04; 94-98; 91-119; 90-79; 90-63; 89-157/90-07.

Opinion:

          The inquiring part-time, a former school board member, asks if it is ethically permissible to serve as an appointed community representative to two advisory committees for his/her local school district, the district-wide safety team and the citizens finance committee.  As described, the safety team has no investigatory function of any kind; its purpose is to improve school safety policies and procedures.  The finance committee advises the superintendent and budget officer on annual budget development, long-term financial planning, capital improvement projects, and education finance laws, policies, and procedures, among other responsibilities.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge may participate in extra-judicial activities that are not incompatible with judicial office and do not cast reasonable doubt on the judge’s capacity to act impartially as a judge; detract from the dignity of judicial office; or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]).  In general, full-time judges may not accept appointment to a governmental committee or commission or other governmental position that is “concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][2][a]).  However, part-time judges are not limited by this rule (22 NYCRR 100.6[B][1]).

          It is well-established that neither full-time nor part-time judges may serve on school boards (see e.g. Opinions 90-79; 90-63; 89-157/90-07).  Here, however, the judge would serve not on the school board, but on an advisory board designed to include certain categories of outside community members as well as school board members. 

          The propriety of serving on a district-wide safety team requires a fact-specific inquiry, as activities intended to promote public safety may potentially overlap with law enforcement or prosecutorial activities.  For example, a judge may not serve in a position that has investigatory or law enforcement functions (see e.g. Opinions 22-136 [community school liaison with sheriff’s department]; 15-20 [county EMS coordinator]; 05-50 [deputy public safety commissioner]) or participate in a program that “as a whole could be perceived as a law-enforcement program” (Opinion 07-52 [prevention, intervention and treatment subcommittee of “City Center Weed and Seed” program]).  Here, based on the inquiring judge’s description, the safety team has no investigatory or law enforcement functions, but instead provides advice about safety policies and procedures for the schools.  In our view, this is permissible (see e.g. Opinions 22-54 [part-time judge may serve on traffic and safety advisory committee concerning matters such as  placement of traffic signs]; 17-39 [judge may serve on not-for-profit board that advises government policy makers on criminal justice measures affecting public safety]; 08-145 [part-time judge may work as public safety advocate where position has no law enforcement duties or oversight]).

          The inquiring judge may also serve on the citizens finance advisory committee.  We have said that a part-time judge may chair an annual school board budget meeting and oversee the school budget vote (see Opinion 02-04 [noting role is “largely an honorary function”]); may serve on an advisory committee to a non-profit credit union that provides services to government employees (see Opinion 91-119); and may serve on an agricultural and farmland districting committee (see Opinion 94-98).  Here, too, we see no appearance of impropriety based on the facts presented.  The judge should nonetheless exercise caution to avoid participating in matters of substantial public controversy or matters that could result in litigation while serving on this committee.