Opinion 05-106

January 26, 2006

Digest:         A judge should not continue to serve on the board of directors of a chamber of commerce that creates a political action committee, the members of which will be appointed by and be members of the chamber’s board of directors.

Rules:          22 NYCRR 100.4(A); 100.4(C)(3)(b); 100.5(A)(1); Opinions 95-151 (Vol. XIII); 94-26 (Vol. XII); 92-116 (Vol. X).

Opinion:

         A judge who serves as a member of the board of directors of a chamber of commerce asks whether it is ethically permissible to continue serving in that capacity if the chamber creates a political action committee (PAC). According to a fact sheet provided by the judge, the PAC’s purpose will be to foster, encourage, and support the highest quality public sector leadership through the support of pro-business candidates. The fact sheet also indicates that the PAC and its board of directors will be appointed by and be members of the board of directors of the chamber. The PAC will, however, exist as a separate corporation governed by its own by-laws and by an independent board of directors. The PAC will raise operating funds from chamber members and others interested in improving the business climate in the area served by the chamber, and will not be funded by the chamber itself.

         A judge must conduct all of the judge’s extra-judicial activities so that they do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office. 22 NYCRR 100.4(A). This Committee has concluded that a judge may serve on the board of directors of a local chamber of commerce (Opinion 95-151 (Vol. XIII)) and serve as president of the board of directors of a county or town chamber of commerce (Opinions 94-26 (Vol. XII); 92-116 (Vol. X)). These prior opinions cautioned, however, that the judge may not personally participate in soliciting funds or in other fund-raising activities on behalf of such an organization. 22 NYCRR 100.4(C)(3)(b).

         On the other hand, this Committee has advised that a judge may not serve on a labor union’s PAC because the Rules Governing Judicial Conduct generally prohibit judges from engaging in most political activity, including publicly endorsing political candidates, engaging in partisan political activity, and participating in any way in the political campaigns of others. 22 NYCRR 100.5(A)(1); Opinion 96-10 (Vol. XIV).

         The present inquirer asks whether the chamber of commerce and the PAC may be considered separate and distinct entities, thus ensuring that the judge will not be involved in political activities prohibited by section 100.5(A)(1) of the Rules Governing Judicial Conduct. While the PAC will legally exist as a separate corporation with separate by-laws and a separate board of directors, its members and board of directors will be appointed by and be members of, the chamber’s board of directors. And, although the chamber will not contribute funds to the PAC, the PAC will solicit funds from chamber members and advance issues of importance to the chamber. In the Committee’s view, therefore, the chamber and the PAC are likely to be perceived as one entity. Consequently, the judge cannot avoid the appearance of being involved in prohibited political activities and should no longer serve as a member of the chamber’s board of directors.