Opinion 08-187

October 23, 2008

Digest:         A part-time judge may sign letters approving or denying grant requests made to a not-for-profit foundation for which he/she serves as president of the board of trustees. The judge may also serve as a 911 operator/dispatcher for a neighboring county.

Rules:       22 NYCRR 100.2; 100.4(A); 100.4(C)(3); 100.4(C)(3)(b)(i); 100.6(B)(4); Opinions 07-133; 07-72; 06-64; 01-42 (Vol. XX); 98-116 (Vol. XVII); 95-106 (Vol. XIII).

Opinion:

          A part-time judge raises two unrelated questions about his/her extrajudicial activities. First, he/she asks whether as president of the board of trustees of a not-for-profit foundation, he/she may sign letters advising applicants seeking financial grants from the foundation as to whether the application had been approved or denied. Second, the judge asks whether he/she may accept employment as a 911 operator/dispatcher in a neighboring county in which he/she does not serve as a judge.

         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 may engage in extra-judicial activities that 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 (see 22 NYCRR 100.4[A]; Opinions 07-72; 06-64).

         Regarding these provisions, we have previously opined, for example, that a part-time judge may serve on the board of directors of a not-for-profit entity providing legal services to children in Family Court (see Opinion 07-72), for a local library (see Opinion 01-42 [Vol. XX]), or for a foundation associated with a not-for-profit organization and may assist the foundation in administering charitable contributions solicited by such associated not-for-profit organization (see Opinion 07-133).

         Moreover, the Rules allow a judge to be a member or serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, cultural, fraternal or civic organization not conducted for profit, subject to certain limitations and requirements (see 22 NYCRR 100.4[C][3]). Although the Rules prohibit a judge from personally participating in the solicitation of funds or other fund-raising activities on behalf of such an organization, they specifically permit a judge to assist the organization in planning fund-raising and to participate in the management and investment of the organization's funds (see 22 NYCRR 100.4[C][3][b][i]).

         The Committee concludes that the judge may, consistent with these Rules and precedents, sign the letters described. Simply announcing the outcome of an application for funding is not the type of fund-raising activity prohibited by the Rules. The judge should not, however, allow his/her title or any reference to his/her judicial position to appear in the letters.

         The judge’s second question concerns service as a 911 operator/dispatcher. The Rules provide that a part-time judge “may accept . . . . public employment in a federal, state or municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]; see also 22 NYCRR 100.2).

         The Committee has previously advised that a part-time judge should not serve as a 911 operator or dispatcher in the same county where he/she sits as a judge because that would create the appearance the judge is too closely involved with local law enforcement agencies that normally appear before the judge (see Opinions 95-106[Vol. XIII]; 98-116 [Vol. XVII]). Here, however, the judge would be serving in a neighboring county in which he/she does not sit as a judge. Thus, the two positions are compatible, as the judge generally would not have the same ties to local law enforcement agencies whose officers normally appear before the judge.