Opinion 07-210

January 31, 2008

Digest:         A full-time judge may serve on the Board of Directors of a not-for profit New York State Public Benefit Corporation created for the purpose of operating a not-for-profit public hospital and cancer research center if such entity is not a governmental committee or commission.

Rules:          22 NYCRR 100.4(A) (1) - (3); 100.4(C)(2); 100.4(C)(3)(a)(i), (ii); 100.4(C)(3)(b)(i), (iv); 101.1; Opinions 06-133; 02-45; 91-40 (Vol. VII).

Opinion:

         A full-time judge asks if he/she may serve on the Board of Directors of a not-for-profit New York State Public Benefit Corporation created for the purpose of operating a not-for-profit public hospital and cancer research center.

         Pursuant to the Rules Governing Judicial Conduct, a judge may be a member or serve as an officer, director, trustee or non-legal advisor of a not-for-profit charitable or civic organization, so long as the organization is not likely to be engaged in proceedings that ordinarily would come before the judge (see 22 NYCRR 100.4[C][3][a][i]). And, if the judge is a full-time judge, the organization cannot be engaged regularly in adversarial proceedings in any court (see 22 NYCRR 100.4[C][3][a][ii].). Furthermore, the judge cannot personally participate in, nor permit the use of the prestige of judicial office for, the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][[i], [iv]). Finally, the judge’s membership or service cannot (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 or be incompatible with judicial office (see 22 NYCRR 100.4[A], [1] - [3]).

         A judge may not, however, accept appointment to a governmental committee, commission or position unless such entity is concerned with issues of fact or policy in matters involving the improvement of the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][2]). The question in the present inquiry, therefore, is whether the Board of Directors of a non-for-profit New York State Public Benefit Corporation that is created for the purpose of operating a not-for-profit public hospital and cancer research center falls within this category of governmental committee, commission or position. If the answer is yes, the judge may not serve because the administration of a hospital does not involve the law, the legal system or the administration of justice (see Opinions 06-133; 02-45; 91-40 [Vol. VII]). If the answer is no, the judge may serve, subject to the limitations of the Rules Governing Judicial Conduct, as discussed above.

         Whether membership on the Board of Directors of a Public Service Corporation is a governmental position is a question of law beyond this Committee’s jurisdiction (see 22 NYCRR 101.1). The Committee suggests, therefore, that the inquiring judge may conditionally accept the proffered appointment, and write immediately to the New York State Attorney General or other appropriate authority for an opinion on the nature of a Public Benefit Corporation Board and ultimately be guided by the resulting legal opinion.