Opinion 13-133

September 12, 2013

Digest:         Principal law clerks who are appointed to serve part-time as SCAR hearing officers during regular court hours as part of their job responsibilities are subject to the same restrictions as sitting judges with respect to political activities.

Rules:          Real Property Tax Law §731(1); 22 NYCRR 100.5; 100.5(C); 100.5(C)(1)-(4); 100.6(A); Opinions 12-184; 12-81; 12-71; 09-165; 07-198; 05-14; 04-130; 96-97 (Vol. XIV).

Opinion:

         An administrative judge states that the roster of Small Claims Assessment Review (SCAR) hearing officers has been expanded to include principal law clerks. The judge notes that SCAR hearing officers are appointed by the Chief Administrative Judge pursuant to Real Property Tax Law §731(1), and that they typically “conduct calendars one or two mornings a month,” which would represent “a very minor aspect” of a full-time principal law clerk’s overall responsibilities. The judge asks whether principal law clerks who are appointed as SCAR hearing officers will be precluded from engaging in political activities that are otherwise permissible for personal appointees of a judge under Section 100.5(C) of the Rules Governing Judicial Conduct (Rules).¹

         The Rules apply to “[a]ll judges in the Unified Court System and all other persons to whom by their terms these rules apply,” such as candidates for elective judicial office (22 NYCRR 100.6[A]). In addition, “[a]ll other persons ... who perform judicial functions within the judicial system shall comply with such rules in the performance of their judicial functions and otherwise shall so far as practical and appropriate use such rules as guides to their conduct” (id.)

         The Committee has consistently applied the limitations on political activity contained in Section 100.5 to quasi-judicial officials (see generally Opinions 12-184; 12-81; see also 09-165 [judicial hearing officer]; 07-198 [court attorney-referee]; 05-14 [judicial hearing officer]; 04-130 [court attorney-referee]; 96-97 [Vol. XIV] [support magistrate]).

         Thus, the only question presented here is whether a full-time principal law clerk who is appointed by the Chief Administrative Judge to conduct court calendars as a SCAR hearing officer two mornings a month as part of his/her job responsibilities is a “person[] who perform[s] judicial responsibilities within the judicial system” (22 NYCRR 100.6[A]). The Committee concludes that the question must be answered in the affirmative. Therefore, principal law clerks who are appointed to serve part-time as SCAR hearing officers during regular court hours twice a month as part of their job responsibilities are part-time quasi-judicial officials subject to the same restrictions as sitting judges with respect to political activities.

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     ¹ A judge must prohibit members of the judge’s staff who are the judge’s personal appointees from engaging in “specifically prohibited” political activity (see Opinion 12-71; 22 NYCRR 100.5[C][1]-[4]). However, the Committee has also advised that, “in the absence of special circumstances, any activity not specifically prohibited by the rules is permitted” (Opinion 12-71).