January 27-28, 2010
Digest: A town justice should not participate as an election observer in the town where he/she presides when certain town government employees cast their votes for or against unionization.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(A)(1) - (3); 100.4(C)(2)(a); 100.6(B)(1); Opinions 09-70; 04-123; 98-56 (Vol. XVI); 94-83 (Vol. XII).
A town justice asks whether he/she may serve as an election observer when certain town government employees cast their votes for or against unionization. According to information the judge provided, the election observer assists an agent of the New York State Public Employment Relations Board to identify eligible voters while the polls are open. Election observers are instructed to maintain "a fair and open mind" and to "see that the election is conducted fairly and impartially" by secret ballot. An election observer's duties include, among other things, "[c]halleng[ing] voters and ballots for good cause." Also, election observers must "[p]romptly report any irregularity or challenge to the right to vote or to a ballot to the Board's agent" and "[r]emain at the voting place to check the fairness of the count."
A judge must avoid impropriety and the appearance of impropriety in all the judge's activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and independence of the judiciary (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities that do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, do not detract from the dignity of judicial office, do not interfere with the proper performance of judicial duties, and are not incompatible with judicial office (see 22 NYCRR 100.4[A]-. Subject to the foregoing limitations, a part-time judge may accept appointment to a governmental position that is concerned with fact or policy (see 22 NYCRR 100.4[C][a]; 100.6[B]).
The Committee previously has advised that a judge's public involvement in matters of "substantial public controversy" may reasonably cast doubt on the judge's ability to act impartially in the performance of his/her judicial functions (see 22 NYCRR 100.4[A]; Opinions 09-70; 04-123).
This Committee also previously has advised that a full-time judge may serve as an observer with a not-for profit civil rights group during an election in an African nation during the transfer from military government to democratic civilian rule (see Opinion 98-56 [Vol. XVI]). The role of outside observers, such as the judge, was "limited to observing and reporting the events taking place" rather than any formally recognized governmental role (id.). Noting that "[t]he sponsoring organization is non-governmental; accredited to the United Nations; and engaged in civil rights and human rights activities," the Committee analyzed this activity as an ordinary extra-judicial activity under Section 100.4 of the Rules Governing Judicial Conduct (id.). However, in Opinion 98-56 (Vol. XVI), the Committee noted that the judge would be part of a large group and concluded that observing the election in Africa did not conflict with his/her judicial duties, and that it did not appear that the judge would "become involved in any controversy resulting from the elections" (id.).
While the ultimate goal of promoting fair and impartial elections is the same in both the present inquiry and in Opinion 98-56, the context of the present inquiry is very different. Although the inquiring judge's role would be non-partisan and essentially non-political in nature (compare Opinion 94-83 [Vol. XII] [judge may not serve as election inspector on behalf of political party]), he/she would be actively assisting a governmental entity to enforce the fairness of the voting process by identifying eligible voters, challenging voters and ballots for good cause, and reporting apparent irregularities to the Board's agent. Thus, if there is any apparent, actual, or claimed irregularity in the election, or any challenge to the results of the vote on unionization, the judge is more likely to be involved in the resulting controversy that will occur in the small town where the judge presides as opposed to in another nation on a different continent. In the case of the inquiring judge, his/her involvement also may cast doubt on his/her ability to act impartially as a judge (see 22 NYCRR 100.4[A]; Opinion 09-70). Accordingly, the inquiring judge should not participate as an election observer in the town where he/she presides when certain town government employees vote for or against unionization.