Opinion 07-42

June 7, 2007


Digest:         A full-time judge may not preside over “attendance court” proceedings for truant students that take place in participating schools, where the judge’s role in such proceedings would be tantamount to that of a mediator.


Rules:          22 NYCRR 100.4(F).





         An administrative judge asks whether a judge may volunteer to preside in “attendance court,” a program that “seeks to promote improved school attendance for chronically truant students and to provide an alternative for parents (facing) possible educational neglect petitions . . .” Judges who volunteer to participate in the program would preside ex officio over weekly “attendance court” proceedings at participating schools. At the initial hearing, the judge “would engage students and their parents/guardians in a conversation about their goals and the importance of school attendance in achieving them.” The judge would recommend implementation or modification of a service plan that was previously prepared by attendance court staff. The service plan may include counseling, tutoring, mentoring, parenting skills and after-school programs. At subsequent appearances, “the judge would commend students for their successes in accomplishing goals set forth in the service plan and seek input from students, parents, school personnel and attendance court staff on continued obstacles and concerns.” The judge would not, however, have formal authority to require families to comply with the service plan.


         The Rules Governing Judicial Conduct provide that “[a] full-time judge shall not act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity unless expressly authorized by law.” 22 NYCRR 100.4(F). Based on the facts the inquiring administrative judge has provided, a judge’s role in presiding over “attendance court” so resembles the function of a mediator that it is tantamount to a mediator’s role. It is not appropriate, therefore, for full-time judges to volunteer to preside over “attendance court.”