Opinion 06-132

November 17, 2006

Digest:         A judge may serve on a municipal Board of Ethics, where the Board’s sole authority is to issue advisory opinions and propose revisions to the municipality’s Code of Ethics.

Rules:          22 NYCRR 100.2(A); 100.4(A)(1)-(3); 100.6(B)(4); Opinions 06-09; 02-43; 01-49 (Vol. XX); 92-45 (Vol. IX); 91-35 (Vol. VII).

Opinion:

         A part-time judge asks whether it is ethically permissible to serve as an uncompensated member of the Board of Ethics of the municipality where the judge presides. The Board of Ethics is authorized to issue advisory opinions at the request of municipal employees and to suggest amendments to the municipality’s Code of Ethics.

         The Rules Governing Judicial Conduct allow a judge to engage in extra-judicial activities if they do not cast doubt on the judge’s capacity to act impartially, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties, and if they are not incompatible with judicial office. 22 NYCRR 100.4(A)(1)-(3). The Rules also allow a part-time judge to accept public employment in a municipal department or agency, provided that such employment does not interfere with the proper performance of judicial duties and is not incompatible with judicial office. 22 NYCRR 100.6(B)(4); 100.4(A)(3).

         This Committee has previously determined that a judge could serve on a municipal ethics committee where the task of the committee was to submit proposed revisions to the municipality’s Code of Ethics and to make recommendations regarding the creation of a Board of Ethics. Opinion 91-35 (Vol. VII). The Committee has also stated, however, that it would be inappropriate for a judge to serve on a municipal Board of Ethics if the board was empowered to hold hearings concerning complaints against municipal employees or officers and to recommend sanctions. The Committee opined that a judge’s participation in such hearings would inevitably involve the judge in matters of public controversy, and the imposition of sanctions could result in court action, thus impairing the public’s confidence in the integrity and impartiality of the judiciary. 22 NYCRR 100.2(A); Opinions 02-43; 01-49 (Vol. XX). Thus, the Committee held it inappropriate for a Judicial Hearing Officer (JHO) - who, for most purposes, is held to the same standard of ethical conduct as a judge - to serve on a municipal Board of Ethics which also had the authority to conduct investigations and hold hearings regarding allegations of misconduct or violations of the municipality’s Code of Ethics. Opinion 06-09.

         Based upon the representations of the inquiring judge and the supporting documentation, it appears that the sole function of the Board of Ethics in the instant inquiry is to issue advisory opinions to town employees and make recommendations regarding amendments to the municipal Code of Ethics. Thus, because the Board of Ethics plays a strictly forward-looking, advisory role, the inquirer may serve on that body. Opinion 92-45 (Vol. IX).