March 10, 2009
Bernice K. Leber, Esq.
New York State Bar Association
One Elk Street
Albany, NY 12207
I am pleased to send the attached New York County Lawyers’ Association (NYCLA) Supplemental Report on the Proposed State Administrative Law Code. We applaud the excellent proposed Model Code of Judicial Conduct for State Administrative Law Judges drafted by the Subcommittee on the Administrative Law Judiciary of the Committee on Attorneys in Public Service. NYCLA supports approval of the Code by State Bar and adoption by the New York State Legislature.
Ann B. Lesk
New York County Lawyers’ Association
Task Force on Judicial Selection
Supplemental Report on the
Proposed State Administrative Law Code
These comments were approved by the New York County Lawyers’ Association Board of Directors at its regular meeting on March 9, 2009.
This Report supplements the Report by the Task Force on Judicial Selection approved by the New York County Lawyers’ Association (“NYCLA”) Board of Directors on May 12, 2008, commenting on the New York State Bar Association’s Proposed Code of Conduct for State Administrative Law Judges (“NYCLA Report”). The NYCLA Report was supportive of the Proposed Code of Conduct for State Administrative Law Judges (“Proposed Code”) dated October 24, 2007. NYCLA continues to urge NYSBA’s approval of the revised Proposed Code, dated December 3, 2008, and its adoption by New York State for general application to New York State Administrative Law Judges (“State ALJs”) in adjudicatory proceedings. NYCLA applauds the NYSB A Committee on Attorneys in Public Service for recognizing the need for a code of ethics for State ALJs and for efficiently and competently providing the solution in the form of the Proposed Code.
The NYSBA Committee on Attorneys in Public Service, in its revised Report and Response to Comments on the Model Code of Judicial Conduct for State Administrative Law Judges, included changes to the Proposed Code that will allow State ALJs to participate in partisan political activity with the requirement that they recuse themselves if there is actual lack of impartiality or there would be an appearance of an impropriety. There are other changes, such as a modification to the requirement for translation services that recognizes that State ALJS are subject to the fiscal constraints of their respective employing agencies.
On balance, the changes do not appear to have an impact on the core principles of the Proposed Code. The Proposed Code provides meaningful guidance to State ALJS on the ethical considerations pertinent to the unbiased and impartial discharge of their adjudicatory duties as executive branch employees. Without approval and adoption of the Proposed Code, New York State ALJs will not have the benefit of a code of ethics to guide them in resolving ethical issues and there will be no objective standard against which to judge the actions of individual ALJs confronting ethical issues.
At present there is no code of ethics as the Code of Judicial Conduct does not apply to ALJs. Further, the Commission on Judicial Conduct does not investigate or discipline ALJs. NYCLA believes that in addition to adoption of the Proposed Code, NYSBA should consider recommending an expansion of the jurisdiction of the Commission on Judicial Conduct to include State ALJs conducting adjudicatory proceedings. Because the employing agency currently has governance authority over State ALJS, the Proposed Code would be beneficial to the employing agency as it would set standards for the appropriate resolution of ethical issues that arise during the course of adjudicatory proceedings.
The New York County Lawyers’ Association, therefore, urges approval by NYSBA and adoption by the State of New York of the Proposed Code as important steps in ensuring that State ALJs conduct and decide adjudicatory proceedings “without fear or favor.”