Judicial ethics commission to be reformed under new bill

State Senator Brad Hoylman is planning to introduce legislation that would expand the powers of the Commission on Judicial Conduct. The senator was motivated to introduce the legislation in the coming weeks after the resignation of former Chief Judge Janet DiFiore prompted the commission to close an investigation into the former top judge. Photo via NYS Senate

By Jacob Kaye

Though unrelated to the alleged ethics investigation into now-retired Chief Judge Janet DiFiore, new legislation set to be introduced at the start of next year may have greatly changed how the investigation was handled had it been law at the time.

A new bill from the chair of the State Senate’s Judiciary Committee aims to increase the independence, transparency and jurisdiction of the New York State Commission on Judicial Conduct, the state’s judicial watchdog authority. The legislation, authored by State Senator Brad Hoylman, is set to be introduced at the start of the State Legislature’s legislative session in January.

Though the lawmaker was working on the bill prior to DiFiore’s resignation, he was prompted to move forward with it after her resignation raised a number of questions about the power and transparency of the commission.

At the heart of the legislation – a draft of which was shared with the Eagle – are two changes to the currently-opaque workings of the commission.

Hoylman’s bill, which has yet to be finalized, would require that any investigation opened into a judge be made public. Additionally, it requires that any judge subject to investigation file a written response to the allegations and that that written response be made public as well.

Currently, the commission is not required to make any of its investigative work public unless it substantiates the allegations made against the subject of the complaint.

Under the legislation, the commission would continue to have the power to keep complaints that don’t result in an investigation under wraps.

“This Senate and this legislature has been pushing for more transparency and a variety of places but it's especially important when we're talking about the justice system and the criminal justice system,” Kenan Kurt, the senator’s chief of staff and legal counsel, recently told the Eagle.

“This is in that vein of transparency for proceedings,” Kurt added. “I don't think it serves the public to have complaints essentially go into a legal black box, and then you don't really know what comes with that and you can't see the evidence for yourself.”

The legislation also aims to close a loophole in the commission’s investigation process which opponents of the former chief judge say she exploited on her way out of the door.

The investigation into DiFiore surrounds an incident that began in the summer of 2020, when DiFiore accused Dennis Quirk, the head of the court officers’ union, of perpetuating racist and biased behavior among his court officers, according to reporting by the New York Post. In response to the Post story, Quirk penned an email to DiFiore in which he denied the allegations of racism and threatened to post stories through the court system related to an alleged 2013 affair the married DiFiore had with a police officer.

Following the email, DiFiore filed a misconduct complaint against Quirk. After filing the complaint, DiFiore wrote a letter, known as an impact statement, to former Judge Phyllis Orlikoff Flug, who was charged with looking into the claim of misconduct against Quirk.

In the letter, DiFiore, in her capacity as the chief judge, asked that Flug “use every means at your disposal to address this incident and deter future misconduct by [Quirk] and other Unified Court System employees.”

“I implore you to use your authority wisely to uphold the values of our entire court system,” DiFiore wrote.

It was that letter that Quirk alleges violated the state’s ethics laws for judges, who are generally not allowed to use their position to influence official proceedings for personal reasons.

While the commission gave no indication that it had started an investigation into DiFiore, a letter sent to Quirk in October appeared to suggest that it had and that the investigation had been closed as a result of her retirement.

“Inasmuch as Chief Judge DiFiore resigned from office on August 31, 2022, and Section 47 of the Judiciary Law strictly limits the Commission’s jurisdiction when a judge resigns, the matter against the former Chief Judge has been closed, subject to being resumed should she ever return to judicial office,” the letter from Robert Tembeckjian, the attorney for the commission, sent to Quirk read.

Under Hoylman’s legislation, the commission would be given the authority to continue its investigations into judges even after they retire or resign.

Though DiFiore and court officials have denied that the top judge’s retirement was connected to the probe, others have speculated that her retirement came in an effort to shut the investigation down – the accusation has mostly been perpetuated by Quirk.

Though her retirement prompted Hoylman to introduce the legislation at the start of the year, a draft of the bill had been in the works long before DiFiore stepped down, according to Kurt.

“We’d actually been working on [the bill] for quite a while, which predates any issues that are currently in the news, although, certainly that's what led to the bill being disclosed,” he said. “It's something that has been borne out of our conversations with the Commission on Judicial Conduct.”

In addition to expanding its powers and making its work more transparent, the legislation would also aim to put the commission in a financial position free of political influence.

The bill states that the governor would not be allowed to revise the budget the commission submits to the executive’s office each year.

The commission has been subject to a number of budget cuts over the past couple of decades. In recent years, Hoylman has pushed for a budget increase to the commission, the first in years, according to Kurt.

“We've seen greatly improved work from the commission since then,” Kurt said.

The legislation has yet to be sponsored by a lawmaker in the Assembly.