Judicial Ethics Opinion 1998-20

QUESTION: Is an Administrative Law Judge who hears cases for an agency of the State of Oklahoma on a part-time basis as an independent contractor subject to all of the provisions of the Code of Judicial Conduct (Oklahoma Statutes, Title 5, Ch. 1, App. 4), or just subsection C — “Continuing Part-time Judge.”

SPECIFICS: The Administrative Law Judge hears cases one or two days a month in the offices of the state agency. The judge prepares written decisions in his or her own office and delivers the final version to the agency. Pursuant to the one-year contract, the judge is compensated for his/her time at a set rate per hour, not to exceed a maximum amount for each case. The judge receives no other benefits from the state agency.

CODE PROVISIONS: An Administrative Law Judge is a judge within the meaning of the Code. Application of the Code of Judicial Conduct, Section A. All judges should comply with the Code, except as provided in Sections B, C, D, E and F. Id. A Continuing Part-time Judge is not required to comply at any time with Sections 2C, 4C(2), 4D(3), 4E(1), 4F (acting as an arbitrator or mediator), 4G (“Practice of law), 5A(1) (participation in political activities), 5B(2) and 5D. Application of the Code of Judicial Conduct, Section C(l)(b).

WE ANSWER: Based on the specific facts set out as part of the question, the Judge in this case should be considered a “Continuing Part-time Judge” under the Application of the Code of Judicial Conduct.

In paragraph A of the Application of the Code of Judicial Conduct, a Magistrate is included along with others who perform judicial functions. The Code contemplates these individuals being full-time employees as they are prohibited from many financially rewarding activities, such as the practice of law.

A distinction is made for Continuing Part-time Judges since they ordinarily would need income from other sources. It is noted in the question above that the Administrative Law Judge hears cases “one or two days a month.” It would be difficult to find Judges to fill these positions if they were prohibited from engaging in other business activities. The Code specifically provides that a Continuing Part-time Judge may serve as an executor, administrator, other fiduciary activities; may serve as an arbitrator or mediator; and may practice law.

Under the specific facts set out above, although the Judge in question is “an Administrative Law Judge” the position is better described in the Code of Judicial Conduct as “Continuing Part-time Judge.”

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary