June 16, 2016
Digest: A town justice may not serve as the workplace ombudsman for aggrieved town employees, as the positions are ethically incompatible.
Rules: 22 NYCRR 100.0(S); 100.1; 100.2; 100.2(A); 100.3(A); 100.4(F); 100.5(B); 100.6(B)(1); 100.6(B)(4); Opinions 16-104; 09-88; 02-43; 01-49; 99-104.
The inquiring town judge asks whether he/she may accept appointment as the town’s “workplace ombudsman.” In this position, the judge would be available to aggrieved town employees “to discuss [their] allegations on an informal basis and attempt to resolve the matter through any legitimate means.”1 This informal process would terminate if the aggrieved employee proceeds with a written complaint. The judge is concerned the role might have an “adversarial nature” and such discussions may “be the subject of later proceedings including litigation in Court.”
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must uphold the judiciary’s independence (see 22 NYCRR 100.1; 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control.”]). A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), but a part-time judge may accept public employment that “is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B]).2
While the propriety of a town justice’s concurrent employment as the town’s workplace ombudsman may be a matter of first impression for the Committee, prior opinions nonetheless provide two significant guiding principles. First, the Committee has advised a village justice not to attend the mayor’s monthly “department heads” meetings, as such attendance “would, in effect, erroneously identify the judge as a member of the executive branch of the local government serving under the direction of the Mayor” (Opinion 99-104). Indeed, participation by either the village justice or the court clerk in the mayor’s department head meetings would jeopardize judicial independence and “raise serious separation-of-powers concerns; it would create an appearance the village court is part of the executive branch serving under the mayor’s direction and control” (Opinion 16-104). Second, a part-time judge may not serve on a municipal ethics board that would hear complaints against members of the municipal government, as such a role would inevitably involve the judge in matters of public controversy incompatible with judicial office (see Opinion 01-49).
Here, too, the workplace ombudsman role could easily create an impression that the town justice is part of the town’s executive branch, thus undermining at least the appearance of judicial independence (see Opinions 16-104; 99-104; 22 NYCRR 100.0[S]; 100.1). Likewise, the role would involve the judge in matters of substantial local controversy which could cast doubt on his/her ability to act impartially as a judge in matters involving the town (see Opinion 01-49; 22 NYCRR 100.6[B]).
Further, if the workplace ombudsman’s authority to “attempt to resolve the matter through any legitimate means” includes the power to recommend disciplinary action against colleagues or supervisors of an aggrieved employee, this could also “place the judge in an adversarial role as a governmental official which ... is incompatible with judicial office” (cf. Opinion 02-43).
For all these reasons, the position of town workplace ombudsman is incompatible with the town judge’s judicial office. The judge therefore should not accept the position.
1 Covered grievances include claims that another town employee or official has: improperly interfered with the aggrieved party’s normal work or movements; made offensive or derogatory comments; behaved in an abusive or intimidating manner; or retaliated against the aggrieved party for complaining “about a real or perceived violation.” Based on the more detailed description included in the inquiry, the Committee assumes some alleged grievances could potentially involve harassment, trespass, or other offenses that may be heard in the town court.
2 Because the position of workplace ombudsman is not an elective position, the resign-to-run rule does not apply (see 22 NYCRR 100.5[B]). To the extent the ombudsman serves as a mediator, the Committee notes that a part-time judge, unlike a full-time judge, may also serve as a mediator in a private capacity, subject to certain limitations (see e.g. Opinion 09-88; 22 NYCRR 100.4[F]; 100.6[B]).