October 19, 2000
NOTE: The Chief Judge’s rules concerning dual employment and political activities of nonjudicial court employees now appear at 22 NYCRR 50.3 and 50.5, respectively. For guidance on Part 50 (formerly Part 25), court personnel may consult the Office of Court Administration’s Nonjudicial Ethics Helpline (888-283-8442).
Note on terminology: This Opinion uses the term "town council" as a synonym for "town board."
Digest: A judge may permit the judge's law secretary (1) to serve as a member of a local commission or committee that is drawing town council district lines; (2) to serve as a co-zone leader of a local political party, provided the position is and has been a non-elective position. Such service is subject to the provisions of section 100.5(C) of the Rules Governing Judicial Conduct and section 25.39 of the Rules of the Chief Judge.
Rule: 22 NYCRR 25.39; 100.3(C)(1); 100.5(C)(1), (2), (3) (4); Opinions 99-100; 99-95; 97-17 (Vol. XV); 93-16 (Vol. X); 90-102 (Vol. VII).
A judge asks whether it is permissible to allow the judge's law secretary to serve on a local commission or committee that is drawing town council district lines. Further, the judge asks whether the law secretary may be allowed to "serve as a co-zone leader for a local political party." (Presumably, the law secretary is the judge's personal appointee.)
Section 100.3(C)(2) of the Rules Governing Judicial Conduct obligates a judge to "require staff, court officials and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge . . ." 22 NYCRR 100.3(C)(1). But, as previously noted by the Committee, this does not mean "that the limitations on the extra-judicial conduct of a judge automatically apply to the judge's law clerk. " Opinion 97-17 (Vol. XV). Thus, while a judge may not serve on a local committee to review existing zoning laws (Opinion 93-16 [Vol. X]), or be involved in the appointment of members of a local advisory committee on reapportionment (Opinion 99-100), the Committee does not believe that such restrictions on extra-judicial involvement result in the automatic prohibition of similar activities on the part of the judge's law secretary. In this instance, we do not believe that the perception of judicial independence would be impaired by permitting the law secretary to serve on a local commission or committee that is drawing town council district lines. Should the work of that body result in litigation that might ultimately come before the judge, then, of course, questions of insulation of the law secretary or possible judicial disqualification might have to be addressed. But such matters are not presently before the Committee.
As to serving as a co-zone leader for a political party, reference must be made to section 100.5(C)(1) of the Rules Governing Judicial Conduct, which provides that a judge shall prohibit members of the judge's staff who are the judge's personal appointees from "holding an elective office in a political organization except as a delegate to a judicial nominating convention or a member of a county committee other than the executive committee of a county committee." 22 NYCRR 100.5(C)(1). Applying that provision, the Committee in Opinion 99-95, stated that a judge may permit the judge's law clerk to serve as a member of the county committee of a political party but not on the executive committee of a county committee. But, here, the position involved is that of "co-zone leader," not that of a county committee person. Thus, the answer to the question posed depends on whether that position is elective or non-elective. If the position is appointive and has been appointive, the judge may grant permission. That is, the position must be one which under local party procedures has been an appointive position, and not one which became such merely to enable the law secretary to assume the office.
Finally, we note that while there are a variety of political activities that a judge's personal appointee may engage in (see e.g. Opinion 90-102 [Vol. VII]), the restraints set forth in subdivisions (2), (3) and (4) of section 100.5(C) pertaining to such matters as political contributions, solicitation of funds, selling of tickets, promoting of political fund-raising, etc., are fully applicable and are binding on the law secretary even if he/she is permitted to serve as co-zone leader. Also binding are those restraints on all employees of the Unified Court System set forth in section 25.39 of the Rules of the Chief Judge. 22 NYCRR 25.39. That is, the holding of an appointive office, if that is the case, does not in any way weaken the mandatory nature of such prohibitions. Under the circumstances, the judge may find it advisable to alert the law secretary to the limitations on his/her political activities should the law secretary be appointed to the position of co-zone leader.