November 29, 2018
This responds to your inquiry (18-161) asking whether it is ethically permissible to sign a statement of compliance with the Village’s recently adopted policy on non-discrimination and harassment which was developed in accordance with New York State legislation. The policy delineates certain prohibited actions, reporting and investigative procedures, and outlines certain corrective actions and/or discipline.
Town and village justices are subject to the Rules Governing Judicial Conduct (“the Rules”) which were promulgated pursuant to the authority granted by the New York State Constitution to the chief administrator of the courts with the approval of the Court of Appeals. Thus, the Committee has previously advised that “a judge’s voluntary submission to a town ethics code, which may arguably be ‘more stringent’ in some ways than the Rules Governing Judicial Conduct, would be ethically inappropriate as it would impinge on the independence of the judiciary (see 22 NYCRR 100.1)” (Opinion 16-55). Therefore, absent a legal requirement, it is ethically impermissible for a town justice to sign a statement acknowledging an obligation to comply with the local municipality’s ethics code.
We believe the reasoning of Opinion 16-55 likewise applies to the Village’s request that you sign a statement of compliance with its new policy. Again, we cannot determine whether a judge is legally required to sign such a statement of compliance. However, we have advised that “a judge who makes a good-faith legal determination based on the apparently controlling statutes and case law (if any) is necessarily acting ethically” (id.). Therefore, if you determine in good faith that you are legally required to sign the statement, you may do so without violating the Rules. If, however, you determine in good faith that you are not legally required to sign the statement, you must not do so “unless and until required by court order or other appropriate legal mandate” (id.).
Enclosed, for your convenience, is Opinion 16-55 which addresses this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Div., First Dep’t
Hon. Margaret T. Walsh
Family Court Judge
Acting Justice, Supreme Court