October 28, 2021
Digest: A full-time judge may apply for an appointment as a federal administrative law judge and go through background checks and salary negotiations prior to acceptance of an offer. The judge may continue to serve in the state judiciary post-acceptance until the day before starting work as administrative law judge.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4; 100.4(A)(1)-(3); 100.4(D)(1)(a); 100.4(F); Opinions 20-176; 13-36; 11-18/11-42; 05-35/10-78; 05-06.
A full-time judge asks if it is necessary to resign from judicial office before applying for a federal administrative judge position, completing application requirements such as a background check, engaging in salary negotiations, and filling out the necessary post-acceptance paperwork for the federal position if offered. The judge also asks if it is ethically permissible to have their judicial tenure with the Unified Court System terminate the day before their start date in the federal system. We note that the prospective employer, a federal agency, is very unlikely to appear in the judge’s court.
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 judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). In extra-judicial pursuits, a judge must seek to minimize the risk of conflict with judicial obligations (see 22 NYCRR 100.4) and may not engage in extra-judicial activities that cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, interfere with the proper performance of judicial duties, or are otherwise incompatible with judicial office (see 22 NYCRR 100.4[A]-). Nor may a judge lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]), or engage in financial and business dealings that may reasonably be perceived to exploit the judge’s judicial position (see 22 NYCRR 100.4[D][a]). Moreover, a full-time judge may not act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity unless expressly authorized by law (see 22 NYCRR 100.4[F]).
In our view, the Rules Governing Judicial Conduct do not preclude a judge from applying for post-judicial employment as a federal administrative judge, subject to all ordinarily applicable limitations on extra-judicial activity throughout the application process (see Opinions 20-176; 13-36; 11-18/11-42; 05-35/10-78 [noting a judge must not use official judicial stationery or resources in soliciting potential future employers]). Nor do the Rules prohibit a sitting judge from completing application requirements such as a background check and salary negotiations prior to acceptance, or submitting necessary post-acceptance paperwork.1 While a full-time judge must resign from judicial office in order to commence employment and receive compensation as a federal administrative judge (see e.g. Opinion 11-18/11-42), we see no reason to require a waiting period or gap between the judge’s last day as a New York State judge and their first day as a federal administrative law judge. Thus, we conclude the judge may arrange for their judicial tenure to terminate the day before their starting date in the federal system.
1 Whether such activities may take place “during regularly scheduled court hours, with time expended to be charged to annual leave,” is an administrative question the Committee cannot address (Opinion 05-06).