Opinion 07-161

October 10, 2007

Digest:         (1) A Judge may not serve as a member of the advisory board of a dispute resolution center to which the judge regularly refers cases.

(2) A Judge may participate in a fund-raising golf tournament, that funds high school scholarships in memory of the judge’s deceased brother, with certain caveats.

(3) A newly sworn-in judge may continue an annual twelve year tradition of playing golf in a fund-raising tournament with a foursome comprised of the judge and certain Sheriff’s Department employees who regularly appear before the judge. The judge should not, however, continue to pay the entry fee for the entire foursome, and should refrain from participating, if, during the tournament, any foursome member is involved in a trial before the judge. (4) For a reasonable time thereafter, when a member of the foursome is involved in any proceeding before the judge, the judge should disclose the relationship to the parties and attorneys and, if a party objects, the judge may determine if recusal is warranted.

Rule:            NYCRR 100.2; 100.3(F); 100.4(A)(1); 100.4(C)(3)(b)(i),(iv); Joint Opinion 05-89/05-90; Opinions 07-17; 06-44; 01-90; 00-50 (Vol. XIX); 96-147 (Vol. XV); 92-15 (Vol. IX); 92-22 (Vol. IX); 91-124 (Vol. VIII); 90-166 (Vol. VI); 90-97 (Vol. VI); 90-19 (Vol. V).

Opinion:

         A judge asks if he/she may continue his/her advisory board membership of a local dispute resolution center to which he/she refers cases.

         Pursuant to the Rules Governing Judicial Conduct, a judge must avoid impropriety and the appearance of impropriety in all of the judge’s activities (see 22 NYCRR 100.2). A judge, therefore, must ensure that his/her extra-judicial activities do not cast reasonable doubt on his/her capacity to act impartially as a judge (see 22 NYCRR 100.4[A][1]).        

         This Committee previously has advised that a judge may not serve as a member of the board of a dispute resolution agency to which the judge refers cases because an appearance of favoritism could result from the judge referring cases to that agency (See Opinion 92-15 [Vol. IX]) .

         In the present inquiry, the judge serves on an advisory board, as opposed to a board of directors. In Opinion 90-19 (Vol. V), this Committee advised that a full-time judge could serve as a voluntary and unpaid member of the advisory board of a community mediation center to which the judge refers ten or fifteen families annually. Nevertheless, as in present inquiry, where the judge regularly refers cases to the local dispute resolution center, service on the center’s advisory board is not permissible (see Opinions 00-50 [Vol. XIX]; cf. 91-124 [Vol. VIII]).

         The judge also asks if he/she may continue to participate in a golf tournament fund-raiser held in memory of the judge’s deceased brother. All fund-raising occurs prior to the tournament date through the sale of journal advertisements, sponsorships by local businesses, and tournament entry fees. The proceeds of the golf tournament are used to fund scholarships for students attending local high schools.

         A judge may not personally participate in fund-raising activities and may not permit the use of the prestige of judicial office for fund-raising purposes (see 22NYCRR 100.4[C][3][b][i],[iv]), but may otherwise participate in charitable fund-raising events (see Opinion 07-17; 01-90 [Vol. XX]; 96-147 [Vol. XV]; 90-166 [Vol. VI]; 90-97 [Vol. VI]).

         For twelve years prior to assuming the bench, the inquiring judge has paid the tournament entry fee for a foursome comprised of four individuals including him. Two guest players currently serve in the County Sheriff’s Department, and one is a retired Sheriff’s employee. The judge says he/she regularly presides in Sheriff’s cases.

         The judge’s public association with three members of the Sheriff’s department predates the judge’s election to the bench and has been known to the community for twelve years. Furthermore, the golf tournament is held only once annually. Accordingly, Committee sees little risk of an appearance of impropriety, or of harm to the integrity and impartiality of the judiciary, should the judge continue this long-standing practice. The inquiring judge should not, however, continue to pay the entry fee for the other foursome members, and should refrain from participating, if, at the time of the tournament, any foursome member is involved in a trial before the judge (see Opinion 06-44; Joint Opinion 05-89/05-90; 92-22 [Vol. IX]. Further, for a reasonable time after the tournament, when a foursome member is involved in any proceeding before the judge, the judge should disclose the relationship to all parties and attorneys and, if a party objects, the judge can determine if recusal is warranted (See 22 NYCRR 100.3[F]; Opinion 06-44; Joint Opinion 05-85/90).