May 7, 1992
Digest: A part-time judge may serve as a member of the board of a county alternatives to incarceration program.
Rules: 22 NYCRR 100.2(a), 100.4 and 100.5(b); Executive Law §261.
A part-time judge inquires whether it is ethically proper to serve as a member of the board of a county alternatives to incarceration program.
Section 100.2(a) of the Rules of the Chief Administrator of the Courts requires that:
A judge shall respect and comply with the law and shall conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
Judges are permitted to participate in a variety of civic activities as long as their activities "do not reflect adversely upon impartiality or interference with the performance of judicial duties" (22 NYCRR 100.5[b]). Furthermore, judges may engage in activities to improve the law, the legal system and the administration of justice provided that "in doing so the judge does not cause doubt on the capacity to decide impartially any issue that may come before him or her" (22 NYCRR 100.4).
Pursuant to §261 of the Executive Law, county advisory boards may be established to develop a plan to identify and provide eligible programs as alternatives to incarceration. Indeed, Executive Law §261(2) requires that the advisory board include judges.
While this Committee has found that judges may not serve on an advisory board to stop drunken driving (Opinion 91-124), serving as a member of the board of an alternatives to incarceration program is not similar to serving as a member of a Stop/DWI advisory board. The functions of a board member here are not related to the duties and responsibilities of a judge in sentencing defendants, so the two positions do not create the appearance of impropriety or of a lack of judicial impartiality.
Here, service on the advisory board, which is legislatively mandated, consists of reviewing the efficacy of programs designed as alternatives to incarceration and is clearly an activity devoted to the improvement of the law and the legal system. Accordingly, the judge may serve on this board.