Opinion 23-42
March 23, 2023
Digest: A part-time town justice may serve as a Nurse Clinic Manager for a county correctional facility in the same county, but must disqualify from any matter involving an inmate for whom the judge personally reviewed the inmate’s medical file or otherwise personally participated in the inmate’s care, either directly or as a supervisor.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(E)(1); 100.6(B)(4); Opinions 22-127; 21-22(A); 92-86.
Opinion:
The inquiring part-time town justice, who presides in a two-judge court, has been offered a job as the Nurse Clinic Manager at a county correctional facility in the same county. The judge states that there are rare instances when an inmate from the correctional facility appears in town court (e.g. for an arraignment). The inquirer asks if the position of Nurse Clinic Manager is ethically compatible with service as a town justice.
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 judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]). Unlike full-time judges, part-time judges may accept “public employment in a federal, state or municipal department or agency provided such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]). A judge must also disqualify in any proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).
In general, “a part-time judge may maintain concurrent employment in correctional facilities where the role does not involve impermissible law enforcement or quasi-law enforcement functions” (Opinion 22-127 [citations omitted]). Indeed, we have previously advised that a part-time judge may serve as a nurse in a county jail, “provided that the judge recuses himself or herself if any inmate comes before the judge” (Opinion 92-86). While the Nurse Clinic Manager role does not ordinarily provide medical or nursing services directly to inmates, but instead supervises the nurses who do so, we believe similar principles apply, and thus this outside employment with the county is likewise permissible.
We write separately to clarify the standard for disqualification. In Opinion 92-86, we required disqualification if “any inmate” from the facility comes before the judge, whether or not the judge had any personal interaction with that inmate. By contrast, in Opinion 22-127, where the part-time judge also served as a per diem chaplain for the Department of Corrections and Community Supervision, we required disqualification only in matters involving “an inmate to whom [the judge] rendered pastoral care or assistance.” That is, we focused on whether the judge “personally interacted” with the inmate “in the course of their extra-judicial employment” (id.).
In our view, the element of personal interaction or involvement is significant and we hereby amend Opinion 92-86 to reflect it.[1]
Here, as the judge would serve in a supervisory capacity, the judge must disqualify from a matter involving an inmate if the judge knows (or learns during the course of the proceeding) that the judge personally reviewed the inmate’s medical file or otherwise personally participated in the inmate’s care, either directly or as a supervisor.
If applicable law permits the judge to make full disclosure on the record, the judge may offer the parties an opportunity to remit the disqualification. As noted in Opinion 21-22(A), remittal requires the voluntary, affirmative consent of all parties and their counsel, if represented, after full disclosure on the record.
[1] Specifically, we amend Opinion 92-86 to reflect that, where a part-time judge serves as a nurse in a county jail, without supervisory responsibilities, disqualification is not necessarily required for all inmates of the county jail, but only for those inmates to whom the judge rendered medical care, assistance, or screening or with whom the judge otherwise interacted in the course of the judge’s extra-judicial employment. Notwithstanding this change, we note the judge still retains the discretion to disqualify from matters involving all inmates, especially if tracking individual interactions would be unduly burdensome.