Opinion 02-91

September 12, 2002

Digest:         A judge who serves on the Family Court should not serve on the board of directors of a non-profit organization that provides services to individuals who may indirectly have been referred to the agency by the Family Court.

Rules:          22 NYCRR 100.2(A); 100.4(A) (1),(3), 100.4(C)(3)(a)(i),(ii); Opinions 99-64; 98-10 Vol. (XVI).

Opinion:

         A Surrogate Court judge who also serves as a Family Court judge has been invited to serve on the board of directors of a non-profit organization that undertakes a number of programs. These may include providing services for individuals with mental retardation and developmental disabilities and residential services.

         One of the dispositional options available to the judge in the performance of his/her duties is the placement of a child outside of the home in the custody of a county or state social service agency which thereafter places the child with the residential component of a social services organization, including the one where the judge would be serving as a board member. The organization has received such referrals from the Family Court for the residential placement of children.

         Section 100.4(C)(3)(a) of the Rules Governing Judicial Conduct states that “a judge may be a member, or serve as an officer, director, trustee or non-legal advisor of an . . . educational, religious, charitable, cultural, fraternal or civic organization not conducted for profit,” subject to certain limitations. Thus, section 100.2 of the Rules requires a judge to “avoid impropriety and the appearance of impropriety in all of the judge’s activities.” Further, a judge must also refrain from activities that cast reasonable doubt on the judge’s capacity to act impartially [22 NYCRR 100.4(A)(1)] and which interfere with the proper performance of judicial duties. 22 NYCRR 100.4(A)(3).

         In assessing whether such strictures are in danger of being breached in the instant matter we note that the Family Court on which the inquirer serves has jurisdiction over proceedings relating to the placement of children outside of the home as well as the authority to refer the children involved in such proceedings to programs operated by the agency. Also, the employees of the organization are likely to be involved in proceedings in the Family Court on which the judge serves. See, 22 NYCRR 100.4(C)(3)(a)(i), (ii). Furthermore, although the inquiring judge is in the practice of not designating the facility where a child should receive treatment or be confined, the judge does make the initial referral to a county or state agency and in so doing creates the possibility of a placement at the agency on whose board the judge would be serving. This combination of circumstances, in our opinion, creates a conflict or at least the appearance of a potential conflict between the judge’s performance of his/her judicial duties and his/her role as a board member.

         Based on the foregoing, it is the opinion of the Committee that the judge should not accept the invitation to serve on the organization’s board of directors. See Opinions 99-6, 98-10 (Vol. XVI).