2010-05 (March 2, 2010)
Government Commissions; Senior Judges/Judge Trial Referees
Canon 5

Issue: May a Judicial Official who is not a senior judge or judge trial referee serve as a non-voting member of observer on the State Post-Employment Benefits Commission, and if not, may a Judicial Official, as part of the Judicial Branch’s cooperation and provision of support to that Commission, attend meetings and volunteer information for consideration by the Commission?

Response: Based upon the information presented, the Committee members unanimously determined as follows:

 (1)(a) Canon 5(g) provides that a “judge should not accept appointment to a governmental committee, commission or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice.” Based upon the foregoing, a judge is not permitted to serve as either a voting or non-voting member of the Commission.

(1)(b) While a judge is not permitted to serve on the Commission, a senior judge or judge trial referee may serve as a member because the Compliance section of the Code of Judicial Conduct states that senior judges and judge trial referees “are not required to comply with Canon 5 (d) and (g).” However, a senior judge or judge trial referee is required to comply with other applicable provisions of the Code of Judicial Conduct and may serve on a governmental commission only if: (1) such participation is consistent with Canon 2(a)’s mandate to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”; (2) service on the Commission does not take precedence over the judicial activities of the senior judge or judge trial referee, see Canon 3; and (3) legal advice is not provided to the Commission by the senior judge or judge trial referee, see Canon 5(f).

(2) A judge who may not otherwise serve on the Commission may attend the Commission’s meetings as a representative of the Judicial Branch, in order to respond to questions and provide information on matters related to the Judicial Branch, including but not limited to the role that pensions and post-employment benefits play in attracting and retaining qualified members of the judiciary. See Canon 4(a)(2). Any judge so appearing must be careful not to engage in or create the appearance of engaging in political advocacy or create the appearance that he/she is effectively a member of the Commission.