Opinion 06-115

December 7, 2006

Digest:           A judge may attend and participate in a conference co-sponsored by a non-profit, charitable organization and an organization of legislators, provided that it is the charitable organization that has extended the invitation, and that such participation is limited to events and programs of an educational, cultural or civic nature.

Rules:            26 U.S.C. § 501(c)(3); 22 NYCRR 100.5(A)(1)(c), (g); Opinions 04-27, 03-46, 02-98, 97-152 (Vol. XVI), www.irs.gov/charities.

Opinion:

          The inquiring judge writes to the Committee “concerning the participation of Judges in an annual educational and cultural conference jointly conducted by Somos El Futuro, Inc. and the New York State Assembly/Senate Puerto Rican Hispanic Task Force.” Specifically, the inquirer asks the Committee to reconsider Opinions 04-27 and 97-152 (Vol. XVI), in which the Committee disapproved attendance and participation by judges in the same or similar conferences.

          The Committee does not believe it is necessary to reconsider its earlier opinions. Rather, as shown below, the present inquiry is sufficiently distinguishable from the earlier inquiries to enable us to conclude that, in this instance, and in light of other opinions issued by the Committee, attendance and participation in the conference is permissible under the conditions specified in this opinion.

          In Opinion 04-27, the New York State Assembly Puerto Rican/Hispanic Task Force, the same group as in the present inquiry, extended an invitation to this conference. A copy of the invitation was attached to the judge’s letter of inquiry. The letterhead of the group was headed by the Speaker of the Assembly, and contains the names of the Task Force’s members, all of whom are apparently members of the Assembly. No reference was made either in the letter of inquiry or in the invitation to the charitable organization Somos El Futuro, Inc., although in the judge’s covering letter reference was made to “Somos El Futuro’s 17^th conference,” without elaboration or explanation. Based upon what was before it, the Committee concluded that the inquiring judge should not attend what appeared to be a “political and legislative gathering.” 22 NYCRR 100.5(A)(1)(c).

          In Opinion 97-152 the judge received an invitation to attend a “four-day Legislative Weekend of the New York State Black and Puerto Rican caucus.” As stated in the opinion, “the main thrust of this meeting is political and supports the aim of developing the caucus into a ‘powerful’ and ‘driving and unrelenting force in the New York State Legislature’” as set forth in the caucus’s “History” and “Mission Statement.” Opinion 97-152 (Vol. XVI). Here, too, the Committee concluded that attendance at the event could be deemed to contravene sections 100.5(A)(1)(c) and (g) in that participation could readily be perceived as constituting prohibited political activity. 22 NYCRR 100.5(A)(1)(c) and (g).

          Both opinions are distinguishable from what is before us in the instant inquiry. Here, in contrast to our prior opinions, we are explicitly told that a non-profit, charitable, educational organization - Somos El Futuro, Inc. - is jointly conducting the conference. The mission statement of Somos El Futuro, Inc. describes it as a section 501(c)(3) organization which “is also the sponsor of the annual Somos El Futuro Conference. Its mission is educational: To enlighten and educate New Yorkers about the needs and issues facing Hispanics across the state to celebrate the unique culture of the Hispanic community; and, to acknowledge the significant contribution of Hispanics living in New York State. This is achieved through workshop seminars, forums and policy institutes.”

          Given what appears to be the sponsorship or co-sponsorship of the conference by a non-profit, charitable, educational entity, we conclude that attendance and participation may fall within the bounds of permissible extra-judicial activity, as expressed in Opinions 02-98 and 03-46, provided that certain conditions are met. In Opinion 02-98, the Committee stated that a judge may attend a fund-raising event sponsored by a local Black and Hispanic Coalition, noting that although the group had apparently endorsed certain political candidates, it was engaged in a “broad range of non-political non-partisan civic activities,” and, thus, attendance did not constitute impermissible political activity. And, in Opinion 03-46, the Committee stated that a judge may present a lecture at a program sponsored by the Latin Advocacy Coalition Campaign Academy, a non-partisan group engaging in an educational activity. The judge was advised to eschew participating in any political activity that might be associated with the event.

          In Opinions 02-98 and 03-46, judges attended and participated at the express invitation of the civic or educational organization involved and not of a political group. That was not the situation before us in Opinions 04-27 and 97-152 (Vol. XVI), where it was at the behest of the Task Force and caucus, respectively, that the judges were asked to participate. We regard the distinction as essential. As stated, Somos El Futuro, Inc. is a section 501(c)(3) organization. 26 U.S. C. § 501(c)(3). This means, according to the official website of the Internal Revenue Service that, as such, “it may not attempt to influence legislation as a substantial part of its activities and it may not participate in any campaign activities for or against political candidates.” www.irs.gov/charities.

          Accordingly, we conclude that for judges to attend the Somos El Futuro conference it should be a result of notification by Somos El Futuro, Inc. of the event (or at the judge’s own initiative), and not the apparent co-sponsor. Acceptance of its invitation in light of the legal status of the hosting organization would thus avoid the perception that judges are agreeing to participate in what otherwise might be regarded as a political event or gathering. In addition, participation by judges must be limited to those events and programs that are not political in content or intention, but are of an educational, cultural or civic nature, i.e., those programs and events that are within the scope of the charitable activities of Somos El Futuro, Inc. Should these conditions be met, attendance and participation are ethically permissible.