January 26, 2012
Digest: A judge paid to be a sports referee for certain educational entities, as an independent contractor selected and retained by the board of education’s subcontractor, from a list of independently certified referees, may preside when the board appears, if the judge believes he/she can be fair and impartial.
Rules: Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(i); 100.3(E)(1)(c); 100.3(E)(1)(d)(iii); 100.4(H)(1)(c)(1)-(2); Opinion 11-64; Joint Opinion 07-78/07-121; People v Moreno, 70 NY2d 403 (1987).
A judge is seasonally compensated as a referee of a particular sport for certain educational institutions, and asks about his/her ethical obligations if the local board of education appears before him/her.1 He/she explains that “[a]ll educational institutions” in New York retain their referees for the sport through certain independent certifying associations of which the judge is a member and certification “require[s] strict training.” The local board of education subcontracts referee recruitment to an athletic league described as “a private organization that administers the referee athletic program.”2 Among its other administrative duties, the athletic league selects and retains referees “from the pool of eligible candidates” certified by the independent certifying associations. The judge states that the New York State Education Department runs a security check on eligible referees, but those referees selected for the season “are classified as independent contractors to” the athletic league and the local board. Based on these facts, the judge asks if disclosure or disqualification is required when the local board is a party before him/her.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]) or in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law §14). For example, a judge is disqualified if he/she has a personal bias or prejudice concerning a party or knows he/she has an interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][a][i]; 100.3[E][c]; 100.3[E][d][iii]).
The question here appears to be one of first impression. The inquiry reveals no direct connection between the inquiring judge and the board of education. Independent certifying associations, not the board of education, determine the pool of eligible referees who have met the associations’ “strict training” requirements. The board of education does not choose referees from this pool but subcontracts that role to an athletic league, described by the judge as a “private organization.” The athletic league, not the board, administers the referee athletic program. And the judge referees specific sporting events involving specific educational entities, rather than providing services to the board directly. Under these circumstances, it is the Committee’s view the judge does not have an interest that could be substantially affected by proceedings involving the board of education (see 22 NYCRR 100.3[E][c]) and the judge’s indirect connection with the board, as described, could not cause the judge’s impartiality to reasonably be questioned in matters involving that board (see 22 NYCRR 100.3[E]).
Thus, in the Committee’s view, the inquiring judge may preside in matters in where the board of education appears, provided the judge believes he/she can be fair and impartial, a matter entirely within the judge’s discretion on these facts (see People v Moreno, 70 NY2d 403 ).3 The judge may, in his/her discretion, choose to disclose facts concerning his/her sports referee service when the board appears, but disclosure is not required.
1 Although the Rules Governing Judicial Conduct do not prohibit a full- or part-time judge from serving as a sports referee for an educational institution as an extra-judicial activity, the Committee notes that a full-time judge (unlike a part-time judge) may not “solicit or receive compensation for extra-judicial activities performed for or on behalf of: (1) New York State, its political subdivisions or any office or agency thereof; [or] (2) a school, college or university that is financially supported primarily by New York State or any of its political subdivisions, or any officially recognized body of students thereof” (22 NYCRR 100.4[H][c]-), subject to an exception that is inapplicable to sports referees.
2 The athletic league’s website shows that payments to referees are issued by the municipality’s comptroller. Because it appears the local board of education has no role in approving the payments, the Committee assumes the athletic league performs this role within its overall administration of the referee program.
3 In Opinion 11-64, the Committee explained that “where disqualification is not mandated pursuant to the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E]) or Judiciary Law §14, the judge ‘is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court’ (People v Moreno, 70 NY2d 403, 405 ). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see 22 NYCRR 100.3[E][a][i]; Joint Opinion 07-78/07-121).”