December 13, 2012
Digest: A quasi-judicial employee who has independently researched and developed a plan for national economic recovery may send the plan to the President of the United States, provided that he/she does so as a private citizen and does not in any way refer to his/her quasi-judicial office or use official stationery.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(C)(1); 100.5; 100.5(A)(1); 100.6(A); Opinions 12-107; 12-81; 10-156; 08-33; 06-93; 96-127 (Vol. XV).
A full-time quasi-judicial employee who has independently researched and developed a plan for national economic recovery asks whether he/she may send his/her plan to the President of the United States for consideration.
A person performing judicial functions within the judicial system, such as a support magistrate, special referee or other quasi-judicial employee, must comply with the Rules Governing Judicial Conduct in the performance of his/her judicial functions and otherwise must “so far as practical and appropriate” use such rules as guides to his/her conduct (22 NYCRR 100.6[A]; see also Opinion 12-81). Thus, a quasi-judicial employee must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]; Opinion 12-107). A quasi-judicial employee must not lend his/her office’s prestige to advance the private interests of him/herself or others (see 22 NYCRR 100.2[C]; see Opinions 96-127 [Vol. XV]; 12-107). For example, Section 100.5's provisions regarding political activities apply to quasi-judicial employees (see 22 NYCRR 100.5; Opinion 12-81). Finally, a full-time judge may appear at a public hearing before an executive or legislative body or official on matters unrelated to the law, the legal system or the administration of justice, only when acting pro se in a matter involving the judge or the judge’s interests (see 22 NYCRR 100.4[C]).
The Committee sees no appearance of impropriety in the inquirer’s proposed letter to the United States President under these circumstances (see 22 NYCRR 100.2). Although the inquirer undoubtedly hopes to influence executive branch public policy in a matter unrelated to the law, the legal system and the administration of justice, there is no indication in the inquiry that the President is involved in any pending public hearing or proceeding on the subject (see 22 NYCRR 100.4[C]), or that the inquirer’s plan will promote any private interest (see 22 NYCRR 100.2[C]; see also Opinion 96-127 [Vol. XV] [judge may not sign a petition addressed to the President seeking executive clemency for a prisoner serving a life sentence for espionage against the United States]).
Because the inquirer’s plan addresses economic issues on a national level, the Committee anticipates there will be essentially no overlap with the inquirer’s quasi-judicial responsibilities, and therefore the proposed letter is unlikely to cast reasonable doubt on his/her capacity to act impartially as a quasi-judicial official, detract from the dignity of his/her office, interfere with the proper performance of his/her official duties or otherwise prove incompatible with the office (see 22 NYCRR 100.4[A]-). Moreover, this is not impermissible political activity, as the inquirer appears to be motivated by civic concern for the economic well-being of the nation as a whole, the proposed plan reflects the inquirer’s own independent ideas and research, and there is no indication the letter will promote any partisan political party, candidate or platform (see 22 NYCRR 100.5[A]).1
In interpreting Section 100.4(C)(1), the Committee has advised that full-time judges and quasi-judicial officials may speak at hearings and write elected, non-judicial officials about matters affecting their own direct, personal interests as private citizens (see, e.g., Opinions 10-156 [natural gas drilling near the support magistrate’s property]; 06-93 [proposed power line near the judge’s home]). In such instances, judges may act in their personal interest as private citizens, without invoking their judicial office or use judicial stationery, as to do so would create an appearance of impropriety (see, e.g., Opinion 08-33). Although the national economy does not directly affect the inquiring quasi-judicial employee’s personal interests in the same manner or degree as the kinds of local activities described in prior opinions, the Committee believes that similar limitations are appropriate in the inquirer’s communications with the President of the United States.
Accordingly, the inquiring quasi-judicial employee may send his/her independently researched and developed national economic plan to the President, provided that he/she does so purely as a private citizen, and does not use official stationery or refer to his/her quasi-judicial title or employment with the court system (see Opinion 08-33).
1 The Committee notes that the current President was recently re-elected and is not currently a candidate for any public office.