Opinion 02-39

September 12, 2002

Digest:         Under the circumstances presented, and to the extent specified, a judge may participate in two dinners which are part of a synagogue’s fund-raising program.

Rule:            22 NYCRR 100.4(C) (3)(b)(i), (iv); Opinions 90-28 (Vol. V); 90-97 (Vol.VI); 96-77 (Vol. XIV); 96-115 (Vol. XIV).

Opinion:

         The inquiring judge is a member of a synagogue that is sponsoring two fund-raising events, and the judge seeks the Committee’s opinion as to the extent of his/her permissible participation.

         In one event, members donate approximately $75 directly to the synagogue in order to attend a dinner hosted by a family member. The judge and his/her spouse would like to be a host family. The judge’s sole role would be to help cook the meal and assist his/her spouse in hosting the party. No funds are solicited and no funds are collected at the party. Moreover, payment is not earmarked by the donor on the basis of who the host is but rather on the basis of a printed menu of the meal being offered.

         In the other event, members attend an auction and bid on goods and services donated by the membership. The judge and his/her spouse would like to offer a home cooked meal at their residence as a donated meal. Again, the judge’s sole role would be to help cook the meal and be in attendance with his/her spouse; and, as before, no funds would be solicited or collected at the dinner.

         The judge also notes that his/her spouse has a different surname from that of the judge, and only the spouse’s name would appear in any written materials associated with either event. Further, both dinners would involve no more than six to eight guests.

         The Committee is of the opinion that under the circumstances presented, the judge’s participation in both dinners would not violate section 100.4(C)(3)(b)(i) or (iv) of the Rules Governing Judicial Conduct, which prohibit a judge from personally participating in the solicitation of funds or other fund-raising activities (22 NYCRR 100.4[C][3][b][i]), or from using the prestige of judicial office for fund-raising. 22 NYCRR 100.4(C)(3)(b) (iv). While the Committee did say in Opinion 96-77 (Vol. XIV), that a judge should not attend a fund-raising event held by the judge’s spouse at their residence, and in Opinion 96-115 (Vol. XIV) that a judge should not donate the use of his/her house as the site of an annual fund-raising event of a charitable organization on whose board the judge serves, we believe that the facts presented here are sufficiently different so as to allow a different result. For, both in Opinions 96-77 (Vol. XIV), and 96-115 (Vol. XIV), it appears that the fund-raising was occurring at the event itself. That is not the situation presented in the instant inquiry where the donations have already been made, under circumstances which do not involve use of the judge’s name.

         Further, the judge’s sole role is to assist his/her spouse in whose name (which is different from that of the judge) the meals are being offered. Such assistance amounts to a de minimus participation, and scarcely differs from serving as a player or umpire in a soft ball game to which tickets have been sold, or pledges made, and as to which the judge had no role whatsoever. See Opinion 90-97 (Vol. VI). Moreover, if a judge can cook and serve hamburgers at a food both for a church fund-raising in a public setting, as was stated in Opinion 90-28 (Vol. V), we see no reason why a judge may not assist in the preparation of a meal at the judge’s residence.

         Accordingly, we conclude that the judge may participate in both events under the circumstances presented and to the extent specified.