May 4, 2017
Digest: A part-time judge may accept employment as counsel to the county legislature, provided (1) his/her duties are clearly identifiable as those of an attorney representing a client and not as partisan political activity and (2) he/she is authorized to interact directly with all county legislators rather than service limited to legislators of a particular party and/or their constituents.
Rules: 22 NYCRR 100.2; 100.2(A); 100.5(A)(1)(i); 100.5(A)(1)(c), (g);
100.6(B)(1)-(5); Opinions 13-98; 12-30; 06-157; 97-86; 94-10; 89-30; 87-25.
A part-time judge asks if he/she may accept employment as counsel to the county legislature, a position that includes attending legislative sessions; drafting bills; researching and advising on legislative powers, procedures, duties and policies; legislative rules of order; and suggestions for communicating legislative policy and initiatives via media and other channels.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not directly or indirectly engage in any political activity except as authorized by the Rules Governing Judicial conduct or by law (see 22 NYCRR 100.5[A][i]). Among other restrictions, a judge may not engage in partisan political activity (see 22 NYCRR 100.5[A][c]) or attend political gatherings (see 22 NYCRR 100.5[A][g]). A part-time judge may, subject to certain limits, engage in private law practice (see 22 NYCRR 100.6[B]-, ) and may accept public employment in a state or municipal department or agency provided the employment is not incompatible with judicial office nor conflict or interfere with the proper performance of judicial duties (see 22 NYCRR 100.6[B]).
The Committee has advised that “positions which would invariably immerse a judge in partisan political activity are incompatible with judicial office, and therefore barred” (Opinion 06-157). Thus, we have also advised that a part-time judge may not accept employment as counsel to a state senator, where “the primary functions of the position include service to constituents of a partisan political nature” (Opinion 97-86) or serve as a community liaison representative for a state assembly member, where “the judge would meet with local constituents, ‘listen to their problems or requests, and forward a report of some kind to the [legislator]’” (Opinion 94-10). Likewise, a part-time judge may not serve as counsel to the Minority Conference of a county legislature where the position “would inevitably involve the judge in impermissible, partisan political activity” (Opinion 06-157).
Conversely, we have advised a part-time judge to decline employment as an assistant staff counsel to the Minority Conference of a county legislature, where “the job responsibilities ... specifically designed to exclude partisan political activities and functions of the type discussed in the Committee’s prior opinions” (Opinion 13-98). To avoid any appearance of impropriety, the employment is permitted only if (1) the judge’s actions “are clearly identifiable as those of an attorney representing a client and not as partisan political activity; (2) he/she interacts directly with Minority Counsel in the performance of his/her duties, rather than with individual legislators or their constituents; and (3) he/she does not attend legislative sessions or Minority Caucuses or other political gatherings” (id.). The Committee has also advised that a town justice may serve as counsel to the vice-chair of a legislative committee on transportation alternatives (see Opinion 87-25) or as counsel to a legislative committee on agriculture and commerce (see Opinion 89-30).1
Here, the judge proposes to serve as a non-partisan legal counsel to the legislative body as a whole, rather than serving as counsel to an individual legislator or to the legislators of one party. Thus, the Committee concludes this part-time judge may accept paid employment as counsel to the county legislature, provided (1) his/her duties are clearly identifiable as those of an attorney representing a client and not as partisan political activity and (2) he/she is authorized to interact directly with all county legislators rather than service limited to legislators of a particular party and/or their constituents. If these conditions are ignored, or if, in practice, a position calls for impermissible political activity or otherwise conflicts with judicial office, the judge must cease to hold both positions (see Opinions 13-98; 89-30; 87-25).
1 As we noted in Opinion 12-30, these outcomes reflect our implicit decision that serving as counsel to these legislative committees would not involve the judge in impermissible political activity or otherwise create an appearance of impropriety.