January 23, 2013
Digest: A judge may participate in a focus group of “key leaders” in the community convened by a school district’s consultant, who is preparing a report analyzing local truancy and possible solutions, where the focus group will not establish or carry out policy or hear or determine any individual cases.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1)-(3); 100.4(C)(2)(a); 100.4(C)(3)(a)(I)-,(ii); Opinions 12-113; 12-74; 12-18; 11-133; 11-110; 07-52; 07-42; 99-77 (Vol. XVIII); 99-21 (Vol. XVII); 93-108 (Vol. XII); 90-25 (Vol. V) ; Joint Opinion 00-54/00-56 (Vol. XIX).
The inquiring judge states that the superintendent of a school district has retained a consultant as part of a broad-reaching effort1 to address local truancy issues. The consultant will convene a focus group of “key leaders” in the community to provide their views and perspectives on “the reasons for our community’s high truancy rate” as well as possible solutions, and will eventually prepare a report for the superintendent analyzing such issues. The judge asks whether he/she may participate in the focus group. The judge notes that, in his/her judicial capacity, he/she has observed that a very high percentage of convicted defendants failed to complete high school; the judge thus feels strongly that reducing truancy may help “stem the tide” of criminal behavior at an early age and help reduce the burden on local courts. It appears from the inquiry that the focus group itself is essentially an ad hoc discussion group, rather than a formally convened governmental entity, and the judge emphasizes that the focus group “neither establishes nor carries out policy; nor does it hear or determine cases.” Moreover, it is the consultant, not the focus group, who will prepare a report to the superintendent on truancy issues.
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]). A judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]), but a judge may nevertheless engage in extra-judicial activities, provided that doing so does not (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and is not incompatible with judicial office (see 22 NYCRR 100.4[A]-). A full-time judge may not accept appointment to a governmental committee or position that is concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][a]), but may be a member or serve as a non-legal advisor of a not-for-profit civic organization, as long as it is not likely that the organization will be engaged regularly in adversary proceedings in any court (see 22 NYCRR 100.4[C][a][I]-,[ii]).
The Committee has recognized that the community benefits from having judges take an active part in community affairs whenever possible, including in community efforts to prevent juvenile delinquency (see Opinions 12-113; 12-74; 99-21 [Vol. XVII]). Thus, the Committee has advised that a judge may, subject to certain limitations, serve on an advisory council to help develop a community-based approach for improving school attendance and thereafter advise the school’s site-based decision-making board (see Opinion 12-113); attend a school orientation to explain to students and their families the consequences of continued school absences (see Opinion 11-133); sign a statement of support for a school district's campaign to promote good school attendance (see Opinion 11-110); participate in a panel discussion about preventing and reducing underage drinking, where the program is educational in nature and is unlikely to be perceived as a law enforcement program (see Opinion 12-74); and serve on a citizens’ task force to reduce teen violence and crime in the community (see Opinion 99-77 [Vol. XVIII]; see also Opinions 99-21 [Vol. XVII]; 93-108 [Vol. XII]; 90-25 [Vol. V]).
Of course, a judge must not participate in community efforts to prevent or address truancy or delinquency issues, no matter how laudable, if the judge’s participation would conflict with the judge’s judicial duties, cast doubt on the judge’s ability to be impartial, or otherwise cause the judge to violate the Rules Governing Judicial Conduct (see generally 22 NYCRR 100.3[A]; 100.4[A]-). Thus, the Committee has advised that a full-time judge may not preside over “attendance court” proceedings for truant students that take place in participating schools, where the judge’s role in such proceedings would be tantamount to that of a private mediator (see Opinion 07-42). The Committee has similarly advised that a Family Court judge may not, as an extra-judicial activity, request Department of Social Services case files for truant children; meet with agency caseworkers, educators, attorneys, and parents to advise them about specific rights and services that may be available to these children under the Education Law; and collaborate with them on ways to improve the children's school attendance, because the judge’s role would involve frequent disqualification, intervention in pending matters before other judges, and appears to be tantamount to serving as a mediator in a private capacity (see Opinion 12-18).
A judge must not, however, participate in otherwise laudable community activities that will compromise the judge’s impartiality (see, e.g., Opinion 07-52 [judge may not serve on the crime-prevention subcommittee of a city program designed to revitalize crime-ridden neighborhoods when, under the circumstances presented, the program as a whole could be perceived as a law-enforcement program, and could also result in cases which would frequently come before the judge’s court]; Joint Opinion 00-54/00-56 [Vol. XIX] [judge may not participate with law enforcement agencies in a "criminal justice focus group" for the local county coalition against domestic violence and sexual assault, where the purpose of the focus group was to endorse the goals of the coalition, and in particular, to develop specific guidelines for the police, the District Attorney's Office, and the Probation Department to follow in such cases]).
Under the circumstances presented, the Committee sees no conflict with the judge’s judicial duties. The focus group appears to be, in essence, a community leaders’ discussion group which will brainstorm general ideas to reduce truancy and provide them to the school district’s consultant. The group has no policy-setting, enforcement, or adjudicative duties, and its role is not analogous to that of a mediator.2 The Committee therefore concludes that it is permissible for the judge to participate in an ad hoc focus group of “key leaders” to share views with a school district’s outside consultant on how to reduce truancy.
1 The judge notes that he/she has declined to participate in other aspects of the school district’s efforts which would involve direct contact with individuals who may later appear before the judge in truancy-related matters.
2 In fact, the focus group in the present inquiry is even further removed from any decision-making role than the advisory council considered in Opinion 12-113. However, the inquiring judge here indicates that he/she presides over matters in which he/she refers truants to Family Court, whereas the inquiring judge in Opinion 12-113 indicated that he/she “does not directly preside over cases involving school absenteeism.”