May 9, 1988
Please note: Opinion 88-44 has been overruled by subsequent Opinions. See Opinions 12-81; 11-17; 06-141; 04-105; 98-32; 97-33; 93-07; 90-126.
Topic: Membership of Family Court Hearing Examiners in an employee organization that engages in political activity.
Digest: Family Court Hearing Examiners, as quasi-judicial officers, may not be represented by a politically active organization.
Rules : Canons 4B, 4C and 7 of the Code of Judicial Conduct; Family Court Act §439
The issue is raised as to whether Family Court Hearing Examiners, who are non-judicial employees of the Unified Court System serving as quasi-judicial officers, may be represented by an employee organization, such as the Civil Service Employees Association, which engages in political activity.
The Civil Service Employees Association (CSEA) is an employee organization whose primary objective is to represent public employees in New York State, including certain non-judicial employees of the Unified Court System in collective bargaining negotiations, to determine the terms and conditions of employment. CSEA has filed petitions with PERB seeking to represent Family Court Hearing Exarminers in such bargaining.
CSEA is involved in political activity in that it endorses and provides support to political candidates at all levels of government, regularly solicits funds for political action committees, and has established its own political action committees. CSEA also engages in lobbying in support of legislation.
All employees represented by CSEA are required to pay either annual dues as members or an agency shop fee as non-members. CSEA's constitution and by-laws provide that three percent of the annual dues or agency shop fee paid by an individual is appropriated for political or ideological purposes. If, however, an individual objects to such expenditure, a procedure is established whereby he may receive a refund of that three percent.
Family Court Hearing Examiners are non-judicial employees of the Unified Court System. They are attorneys who serve as quasi-judicial officers and are subject to the Code of Judicial Conduct. They are appointed by the Chief Administrator of the Courts to serve a three-year term. Family Court Act §439(f). Family Court Hearing Examiners are empowered by section 439 of the Family Court Act to hear, determine and grant relief in certain support and paternity proceedings in the Family Court.
As the public perceives hearing examiners as members of the judiciary, it is imperative that the public be assured that political considerations do not affect or appear to affect their judgment, and that they will not use the influence of their office to advance political interests. Accordingly, hearing examiners should not be members of or be represented by CSEA.
This opinion is advisory only and is not binding upon the Commission on Judicial Conduct or the Office of Court Administration.