Opinion 06-112

September 7, 2006

Digest:         A judge should not serve on a scholarship selection committee of the not-for-profit charitable arm of a trade association, where the trade association and its arm are likely to be perceived as a single entity promoting the association’s commercial aims.

Rules:          22 NYCRR 100.2(C); 100.4(C)(3); 100.4(D)(3); Opinion 05-106.

Opinion:

         A judge has been asked to serve on a scholarship selection committee for the charitable arm of a local home builders’ trade association. The judge’s role would be to meet with other members of the committee and to review applications for scholarships. All scholarship funds to be distributed are raised by the trade association or its charitable arm. The judge would be listed as a member of the scholarship selection committee on letterhead, brochures, and other such documents.

         The instant inquiry requires this Committee to determine if the trade association, and its charitable arm and scholarship committee, are to be considered separate and distinct entities, thus ensuring that the judge will not be perceived as advancing the association’s private interests in violation of section 100.2(C) of the Rules Governing Judicial Conduct, while otherwise participating in apparently permissible extra-judicial charitable activities. 22 NYCRR 100.4(C)(3).

         In this regard, we note that while the charitable arm may legally exist as a separate corporation with separate by-laws and a separate board of directors, its members and board will be appointed by and be members of the trade association. In addition, the scholarship committee will distribute funds raised by the association and share an address and telephone number with it. Moreover, the scholarships are expected primarily to benefit persons likely to become involved in the home-building industry. While there is certainly nothing inherently improper about this selection criterion, this fact renders it more likely the scholarship committee will be perceived as acting on behalf of the trade association. Consequently, the judge may not be able to avoid the appearance of being an active participant in promoting the interests of a certain segment of the business community. Therefore, in our view, the judge should not serve as a scholarship committee member. 22 NYCRR 100.4(D)(3); Opinion 05-106.