Opinion 09-207

December 3, 2009

Digest:         A full-time judge may serve on the board of a mutual benefit corporation organized pursuant to Insurance Law Article 43, which governs the operation of Non-profit Medical and Dental Indemnity, or Health and Hospital Service Corporations, and receive the same compensation for attending meetings as do other members of the board.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); 100.4(A)(1) - (3); 100.4(C)(3)(a)(i),(ii); 100.4(C)(3)(b)(i), (iv); 100.4(H)(1)(a), (b); Opinions 07-210; 01-72 (Vol. XX); 00-18 (Vol. XIX); 98-35.

Opinion:

         A full-time judge asks whether he/she may serve on the board of a mutual benefit corporation organized pursuant to Insurance Law Article 43, which governs the operation of Non-profit Medical and Dental Indemnity, or Health and Hospital Service Corporations, and receive the same compensation for attending meetings as do other members of the board.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). 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][1] - [3]). Therefore, a judge may be a member or serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, cultural, fraternal or civic organization that will not be engaged in proceedings that ordinarily would come before the judge or, if a judge serves full-time, will not be engaged regularly in adversary proceedings in any court (see 22 NYCRR 100.4[C][3][a][i],[ii]). However, while a judge may assist such an organization in planning fund-rasing and may participate in the management and investment of the organization’s funds, a judge shall not personally participate in the solicitation of funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]) and shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][iv]).

         A full-time judge may receive compensation and reimbursement of expenses for the extra-judicial activities permitted by the Rules Governing Judicial Conduct if the source of the payments does not give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety so long as the compensation does not exceed a reasonable amount, does not exceed an amount a person who is not a judge would receive for the same activity, and expense reimbursement is limited to the actual cost of travel, food and lodging reasonably incurred by the judge (see 22 NYCRR 100.4[H][1][a], [b]).

         The Committee previously has advised that a judge may serve on the board of directors of a non-profit neighborhood health center (see Opinion 98-35; a small not-for-profit hospital (see Opinion 01-72 [Vol. XX]); 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 (see Opinion 07-210). The judge in the present inquiry also may serve on the board of a mutual benefit corporation organized pursuant to Insurance Law Article 43, subject to the provisions of the Rules Governing Judicial Conduct set forth above, and may receive the same compensation for attending meetings as do other members of the board (see 22 NYCRR 100.4[H][1][a]). However, the judge must disqualify him/herself should the mutual benefit corporation appear in the judge’s court as a party or is otherwise involved in a case in the judge’s court, as that is a circumstance in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), unless his/her disqualification is remitted (see 22 NYCRR 100.3[F]; Opinion 00-18 [Vol. XIX]).