Opinion 09-28

January 29, 2009

Digest:         A part-time judge (1) may not serve as co-chair or master of ceremonies of a charitable organization’s fund-raising golf tournament, but may assist with planning the event; (2) may assist with the logistics for a fund-raising event sponsored by a police organization to benefit a charitable organization but may not solicit donations, allow his/her name to be used in any aspect of fund-raising, or deliver tee shirts to sponsors; and (3) may assist a not-for-profit organization by swearing in officers of the organization, conducting disciplinary hearings for violations of the organization’s rules, auditing the organization’s financial records, and serving as the master of ceremonies for Veterans Day and Memorial Day ceremonies provided that no fund-raising occurs at these events.

Rule:           22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(1) - (3); 100.4(C)(3); 100.4(C)(3)(a)(i); 100.4(C)(3)(b)(i), (ii), (iv); 100.4(F); 100.4(G); 100.6(B)(1); Opinions 08-122; 08-161; 07-118; 07-17; 07-05; 06-69; 06-65; 05-66; 04-144; 02-81; 01-90; 00-102 (Vol. XIX); 99-137 (Vol XVIII); 98-39 (Vol. XVI).

Opinion: 

         A part-time judge asks whether he/she may engage in certain extrajudicial activities. First, the judge asks whether he/she may serve as co-chair of a charitable organization’s fund-raising golf tournament held in a county adjoining the county where the judge presides. The judge explains that his/her name and title as “co-chair” would appear on the tournament application form, but not his/her judicial title. Also, as co-chair, the judge also would post advertisements, recruit and register golf players for the tournament, and serve as master of ceremonies for the awards while other volunteers conduct a raffle during dinner. The judge states that he/she would not solicit any money or donations, but would solicit people to play. Second, the judge asks whether he/she may serve as the master of ceremonies and assist with logistics for an event hosted by a state police sports team, which is a fund-raiser for a charitable organization. The judge also asks if he/she may deliver complimentary tee shirts to sponsors after the event. Third, the judge asks whether he/she may serve as the Judge Advocate of a local American Legion Post. The judge advises that his/her responsibilities include administering the oath of office to Post officers, conducting disciplinary hearings concerning alleged rules violations, auditing the Post’s financial records, and serving as the master of ceremonies at Veterans Day and Memorial Day ceremonies.

         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]). In addition, a judge’s judicial duties take precedence over all of the judge’s other activities (see 22 NYCRR 100.3[A]). Therefore, a judge must conduct his/her extra-judicial activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or otherwise interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1] - [3]).

         A judge may be a member or officer of a charitable organization, subject to certain limitations (see 22 NYCRR 100.4[C][3]) and “may assist such an organization in planning fund-raising” (id. at 100.4[C][3][b][i]). In doing so, however, a judge must not “personally participate in the solicitation of funds or other fund-raising activities” for the organization (id.) and “shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation” (22 NYCRR 100.4[C][3][b][iv]).

         Thus, a judge may assist an organization in planning a charitable fund-raiser (see Opinions 07-17 [judge may be a member of an ad hoc committee that exists solely for the purpose of planning a fund-raising walk, but should not be involved in and in any event must not be identified as being part of committee publicly promoting the event]; 06-69 [judge may suggest names of potential co-chairs of a law school fund-raising event, as long as his/her name is not used to recruit them]; 01-90 [judge may assign and supervise the course marshals at a fund-raising golf tournament as long as he/she is not identified as a judge on his/her badge or in event materials]), but must not permit his/her name or judicial status to be used in connection with the organization’s fund-raising activities (see 22 NYCRR 100.4[C][3][b][iv]).

         While a judge may assist with planning a fund-raiser, the judge may not chair the event (see Opinion 06-69) or chair the committee planning the event (see Opinion 07-17), unless the judge’s role as chair is truly honorary, the judge’s “participation is unadvertised and ancillary to the event” (Opinion 08-122), and the judge does not engage in any fund-raising activities (see Opinion 07-118).

         Based on these prior precedents, it is the Committee’s view that the inquiring judge should not be listed as co-chair on the tournament application (see Opinions 07-17; 06-69), post advertisements (see Opinion 07-17) or recruit golf players for the tournament (see Opinions 06-69; 05-66). The judge may handle administrative or scheduling aspects of the tournament such as registering those who wish to participate in the tournament, but must not be involved in the solicitation of players, or the solicitation or collection of any associated fees or donations.

         A judge may attend a charitable organization’s fund-raising event, but is expressly prohibited from being “a speaker or guest of honor” at the event (22 NYCRR 100.4[C][3][b][ii]). In the Committee’s view, one who serves as master of ceremonies for an event is a “speaker” at the event, and, therefore, a judge may not be the master of ceremonies at a charitable fund-raising event (see Opinion 98-39 [Vol. XVI]).

         As for the second question, the Committee concludes that the inquiring judge may assist a police sports team with the logistics of an event to raise funds for a charitable organization (see Opinions 02-81 [judge may attend a brunch to raise funds for a Police Benevolent Association scholarship]; 99-137 [Vol XVIII] [judge may “attend purely social functions” of “an association of active constables”]; cf. Opinion 08-161 [judge may make contributions to police organizations]). However, the inquiring judge should not deliver tee shirts to sponsors after the fund-raiser, because this would create an appearance that the judge has impermissibly participated in personally raising funds (see e.g. Opinion 05-66 [judge may not host dinner to thank donors to a charitable organization]).

         Finally, with respect to whether the judge may serve as the Judge Advocate of a local American Legion Post, a part-time judge may serve as an officer of a fraternal or civic organization not conducted for profit, unless it is likely that the organization will be engaged in proceedings that ordinarily would come before the judge (see 22 NYCRR 100.4[C][3][a][i]). While a full-time judge is precluded from conducting disciplinary hearings in a private capacity and may not serve a fraternal or civic organization as a legal advisor (see 22 NYCRR 100.4[F]; 100.4[C][3]; 100.4[G]), a part-time judge is not so restricted (see 22 NYCRR 100.6[B][1]). Therefore, to the extent that the position of Judge Advocate involves providing legal advice to the American Legion Post, the inquiring part-time judge is permitted to do so (see 22 NYCRR 100.4[G]; 100.6[B][1]). The judge also may serve as a master of ceremonies for the organization’s patriotic or holiday celebrations providing it does not involve any fund-raising and as long as the judge’s judicial title or position is not used to promote the events beyond being mentioned in an invitation (see Opinion 06-65 [judge may serve as master of ceremonies for the unveiling of a holiday display]; see also Opinions 07-05 [judge may place newspaper advertisements with seasonally appropriate greetings for Memorial Day, Veterans Day, and the like]; Opinion 04-144 [judge may serve as Grand Marshal for St. Patrick’s Day parade]; Opinion 00-102 [Vol. XIX] [judge may appear in not-for-profit entity’s television spot featuring Italian-Americans of note for Columbus Day]). Otherwise, the duties identified by the inquiring judge appear to be permissible, non-political and non-fund-raising activities.